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Is It Normal to Get a Request for Evidence on an H-1B?

December 11, 2018

Yes. Since the advent of the Trump Administration, we have seen a significant uptick in the number of Requests for Evidence (RFEs) issued by USCIS on H-1B petitions. The most common type of RFE appears to be that questioning whether a position is truly a “specialty occupation” for which an H-1B is intended and whether the U.S. Department of Labor (DOL) Wage Level listed on the Labor Condition Application is appropriate.

First, a specialty occupation is one that requires a “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation.” INA § 214(i)(l). Some positions are expressly specialty occupations – architecture, engineering, physical sciences, medicine, accounting, law, and a handful of other positions fall in that category. For many other positions, though, the employer must prove to USCIS that the position is a specialty occupation by establishing at least one of four requirements:

A bachelor’s or higher degree, or its equivalent, is normally the minimum for entry into the position;
The degree requirement is common to the industry in parallel positions among similar organizations, OR the employer’s particular position is so complex or unique that it can only be performed by someone with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a bachelor’s or higher degree.

While it may seem at first blush that each of the above is straightforward and easy to prove, such is not the case. In fact, a highly detailed analysis of the position and its requirements needs to be performed in order to adequately assess how to respond to the RFE.

A second common RFE topic is the DOL wage level. USCIS often questions whether the proposed position actually corresponds to the wage level set forth on the submitted LCA. If the wage level is listed as Level 1 – which connotes an entry level position – USCIS is likely to closely scrutinize the position, arguing that a position cannot be both entry-level and sufficiently specialized and complex to warrant an H-1B visa. USCIS’s argument is fundamentally flawed, though, and many appellate decisions confirm that a Level 1 wage designation does not preclude a position from being a specialty occupation. For instance, an entry-level physician is still in a specialty occupation.

Particularly of late, USCIS will often come up with a reason to send an RFE, so do not be alarmed. However, it is important to critically analyze the RFE and properly address the concerns noted therein.

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Johnstone Adams LLC Ranked by Best Law Firms® in 2025

By David Owens • January 17, 2025

Mobile, AL. United States, January16,2025 ··Johnstone Adams LLC has been recognized in the 2025 edition of Best Law Firms*, a testament to its unwavering commitment to legal excellence. Ranked by Best Law Firms regionally in 8 practice areas, Johnstone Adams LLC has distinguished itself in the legal industry, earning this prestigious accolade. Firms included in the 2025 Best Law Finns& list are recognized for professional excellence with impressive ratings from clients and peers. To be considered for this milestone achievement, at least one lawyer in the law firm must be recognized in the 2025 edition of The Best Lawyers in Americaf). "At Best lawyers, we are proud to recognize law firms that show an unwavering commitment to excellence, innovation, and client satisfaction, • said Philip Creer, Chief Executive Officer of Best lawyers. "In the legal arena. Credibility is earned through consistent quality, which has propelled these firms to the forefront of the legal industry. • Achieving a ranking in Best Law Firms signifies high-quality legal practice and a depth of legal proficiency. Recognized firms, categorized into three tiers, receive acclaim on both national and metropolitan levels, reflecting the extent of their practice and geographic reach. Receiving a tier designation represents an elite status, reflecting the integrity and reputation earned by law firms. The 2025 edition of Best Law Firms* includes rankings in 75 national practice areas and127 metropolitan-based practice areas. The highest-rated firm in each national practice area attains the prestigious "Law Firm of the Year" honor. The transparent collaborative research process employs qualitative and quantitative data from peer and client reviews, supported by proprietary algorithmic technology, to produce a tiered system of industry-led rankings of the top 4% of the industry. Johnstone Adams LLC received the following rankings in the 2025 Best Law Firms®: • Regional Tier 1 o Mobile • Employment Law - Management • Labor Law - Management • Litigation - Labor and Employment • Workers• Compensation Law - Employers • Regional Tier 2 o Mobile • Employee Benefits (ERISA) Law • Health Care Law • Litigation - Construction • Tax Law ### About Johnstone Adams LLC Johnstone Adams LLC is committed to providing its clients with the full range of services necessary to meet their legal needs. Our lawyers develop and maintain the knowledge and experience to provide top notch legal representation consistent with the needs of our clients, both as to time and expense. Johnstone Adams, LLC specializes in the following practice areas: • Banking, Finance & Creditors• Rights • Business and Corporate including Business Dispute and Shareholder Rights Litigation • Construction Litigation • Employment, Labor and Workers• Compensation Law • ERISA, Tax, Trusts & Estates • Health Care including Mental Health • Immigration including Employment, 1-9 Compliance and Family • Insurance Litigation: (1) Defense: Construction & Completed Operations; Major Claims & Professional Liability; (2) Coverage and Regulatory: Agency, Commercial, Fidelity, Personal lines & Title • Real Estate including Conveyancing, Environmental & Zoning • Real Estate Litigation, including Conveyancing, Lien Priorities & Titles For more than a century Johnstone Adams LLC has strived to improve upon how we deliver legal services to our clients in this ever-changing economic climate.

Johnstone Adams LLC Lawyers Recognized as Best lawyers® Award Recipients

By David Owens • January 17, 2025

Johnstone Adams LLC Lawyers Recognized as Best lawyers® Award Recipients Mobile, AL. United States, January 16, 2025 •• Johnstone Adams LLC is pleased to announce that 7 lawyers have been included in the 2025 edition of The Best Lawyers in America• Since it was first published in1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Johnstone Adams LLC would like to congratulate the following lawyers named to 2025 The Best Lawyers in America list • Celia J. Collins • Employment Law Management. Labor Law Management. Litigation • Labor and Employment. and Workers' Compensation Law • Employers Rick A. La Trace - Bankruptcy and Creditor Debtor Rights I Insolvency and Reorganization Law • E. Russell March Ill - Elder Law • Wade B. Perry Jr. - Employment Law- Management, Health Care Law, and Litigation - Labor and Employment • Elizabeth Darby Rehm - Employment Law - Management, Labor Law - Management, and Litigation - Labor and Employment • Lawrence J. Seiter - Litigation - Construction and Workers• Compensation Law - Employers • E. Watson Smith - Employee Benefits (ERISA) Law and Tax Law ### About Johnstone Adams LLC Johnstone Adams LLC is committed to providing its clients with the full range of services necessary to meet their legal needs. Our lawyers develop and maintain the knowledge and experience to provide top notch legal representation consistent with the needs of our clients, both as to time and expense. Johnstone Adams, LLC specializes in the following practice areas: • Banking, Finance & Creditors• Rights • Business and Corporate including Business Dispute and Shareholder Rights Litigation • Construction Litigation • Employment Labor and Workers• Compensation Law • ERISA, Tax, Trusts & Estates • Health Care including Mental Health Immigration including Employment, 1-9 Compliance and Family • Insurance Litigation: Defense: Construction & Completed Operations; Major Claims & Professional Liability; Coverage and Regulatory: Agency, Commercial, Fidelity, Personal lines & Title Real Estate including Conveyancing, Environmental & Zoning Real Estate Litigation, including Conveyancing, Lien Priorities & Titles For more than a century Johnstone Adams LLC has strived to improve upon how we deliver legal services to our clients in this ever-changing economic climate.

Johnstone Adams LLC Lawyer Named to 2025 Best Lawyers: Ones to Watch® in America

By cherie • August 16, 2024

FOR IMMEDIATE RELEASE Johnstone Adams LLC Lawyer Named to 2025 Best Lawyers: Ones to Watch® in America Mobile, AL, United States, August 15, 2024 — Johnstone Adams LLC is pleased to announce that 1 lawyer has been included in the 2025 edition of Best Lawyers: Ones to Watch® in America. Best Lawyers: Ones to Watch...

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Corporate Transparency Act’s New Reporting Requirements On Jan. 1, the Corporate Transparency Act (CTA) was enacted. This requires certain companies in the U.S. to disclose information regarding who owns or controls a company. Companies must report this to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN). Which Companies Need to Report to FinCEN? For U.S.-based...

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My husband and I were referred to Johnstone Adams in the spring of last year. We are working very closely with Jessica Welch and Greg Watts on an ongoing and unwanted family estate matter. Ms. Welch and Mr. Watts have been so professional and knowledgeable. In addition, considering the nature of the suit, Jessica has provided my husband and me with peace of mind we didn’t think was possible during this extremely stressful time of our lives. She is an amazing trial attorney. They have gone above and beyond. To sum it up, I have nothing but the utmost respect and appreciation for them. I would strongly recommend either of them to my dearest friends and family members. I’m so thankful that we stumbled upon them. I’m actually going to miss Jessica Welch when this is all over.”

I am currently using this law firm and they are informative, keep me up to date with my case, and return your calls/emails immediately. I am very satisfied. My wife and I approached Johnstone Adams to help us make a better-informed decision regarding her immigration. They have been a truly invaluable asset. They brought their knowledge, experience, confidence, and calm demeanor to the process, which put our minds at ease. The worry and anxiety that we were facing melted away, and we have been, literally, hand-held during this daunting process. We can’t thank or recommend Johnstone Adams enough and look forward to continuing to use their services in the future.

Johnstone Adams was a great help when it came to drawing up our family’s will and advanced directives prior to the birth of our first son. These are certainly things that no one wants to think about, but the process was easy. They were professional and knowledgeable, answering all of our questions along the way with compassion and sensitivity. Johnstone Adams responded quickly to any questions and was easy to get in touch with! We would highly recommend them for any legal work!! Jessica’s advice and assistance with our family’s interests in a probate matter was exceptional from beginning to end– always thoughtful, responsive and efficient, and focused and timely.

It was a genuine pleasure for the doubtless incorrigibly demanding old lawyer that I am to have a professional of her outstanding caliber assisting me on this matter—both generally and in my role as executor in particular—in a jurisdiction unfamiliar to me and on a matter completely outside of my own experience and expertise. I might also point out that she was really excellent in interfacing, always in a timely and solution-oriented manner, with other parties involved in our matter to help keep our initiatives on track—including attorneys dealing with the disposition of residential real estate and financial assets. Jessica and her excellent assistant, Shelly Perrone, also offered and provided pragmatic and efficient solutions to logistical and execution issues made it significantly more challenging than usual given the COVID-19 crisis and my own location far from Mobile– in Paris, France.

I highly recommend attorney Rick La Trace. Aside from being professional, polite, and yet firm, Rick is a combination of knowledge, detail, and responsiveness. (In my opinion, there are very few professionals who have ALL three qualities. Rick is one of the very few.) What makes him stand apart from the rest, is that he takes the time to listen to his client’s concerns (no matter how “trivial”). He educates client’s on how the law works, shares his opinions, including the pros and cons of each. We would definitely use Rick’s services again, and highly recommend him for anyone who wants a lawyer that they can trust to thoroughly handle their case from start to finish, even down to the small details. You can tell from working with Rick that he’s not just about getting paid for his services, but that he enjoys working through problems and finding creative solutions for his clients. Also, I highly recommend the Johnstone Adams, LLC systems and processes. Shelly and Cathy were on top of things. I give Rick and Johnstone Adams more than five stars.

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WHY CHOOSE OUR FIRM

Dedicated Quality & Commitment

Only a few special law firms in the U.S. have provided exceptional representation to businesses for more than a century. Johnstone Adams, LLC is one of these rare, distinguished firms. Since 1897, the firm has successfully advanced from a local firm serving South Alabama into a dynamic regional powerhouse equipped to fulfill most legal needs of its diverse client base.

Legacy Of Excellence

Each attorney takes great pride in continuing the firm’s legacy of excellence. By consistently providing sophisticated, aggressive, and innovative legal solutions to every client in each service area, Johnstone Adams attorneys personally ensure that their firm’s long, storied past is only the beginning.

Exemplary Client Service & Efficiency

With a focus on exemplary client service and efficiency, Johnstone Adams attorneys guide clients through legal matters from the first conversation about strategy to successful completion in the following critical service areas: Health Care, Employment, Labor & Workers’ Compensation, Insurance Defense Litigation, Commercial Litigation, Corporate Transactions, Real Estate Litigation & Transactions, Construction, Oil & Gas, Tax, Trusts & Estate Planning, Banking & Finance, Immigration, and Forest Use.

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