Importance of Ensuring Proper Wage Level Selection on the LCA for H1B Petitions

Recent regulatory changes have reinforced the long-standing position of the U.S. Citizenship and Immigration Services (USCIS) that a certified labor condition application (LCA), in itself, does not establish that the position qualifies as a specialty occupation or that the LCA properly supports the H1B petition. In particular, the regulation underscores the importance of ensuring that the wage level selected on the LCA appropriately corresponds with the job duties listed in the H1B petition. As such, employers must take care when preparing an H1B petition to avoid potential pitfalls related to wage level selection.

USCIS Evaluation of the LCA in H1B Adjudications

Under the regulation implemented in January 2025, the USCIS has expressly confirmed that it will review the LCA to determine whether it properly corresponds with the H1B petition. This evaluation includes consideration of various elements of the LCA, including, but not limited to:

• the standard occupational classification (SOC) code selected
• the wage level designation (or an independent authoritative source)
• the geographic location/s of employment

If any of these factors does not align with the offered position, as described in the H1B petition and supporting documentation, the USCIS may determine that the LCA does not properly support the petition, potentially leading to a denial.

Importance of Proper Wage Level Selection

One key area of scrutiny is the wage level on the LCA. The U.S. Department of Labor (DOL) provides detailed guidance on how to determine the appropriate wage level based on the job duties and requirements. Employers must avoid selecting a wage level based solely on the salary being paid to the employee. Instead, the wage level should be chosen in accordance with DOL guidance, which takes into account:

• the complexity of job duties
• the level of judgment required
• the amount of supervision necessary
• the level of understanding required to perform the duties

If a position involves high-level tasks that require independent judgment and significant experience, yet the LCA is certified at a level 1 wage, the USCIS may question whether the LCA has been properly certified. This could lead to a denial of the H1B petition on the basis that the LCA does not correspond with the job duties.

Consideration of DOL Guidance in Wage Level Selection

The USCIS has clarified that it will refer to the DOL’s published guidance, and other publicly available sources referenced in the DOL’s prevailing wage determination policy guidance, when assessing whether the wage level corresponds to the job duties. The relevant DOL guidance provides a structured method for determining the appropriate wage level. Following this guidance is essential to ensure compliance and to minimize the risk of an adverse determination by the USCIS.

Addressing USCIS Concerns in H1B Filings

Employers should document their wage level selection process carefully and be prepared to justify the wage level selected, if challenged by the USCIS. While an employer may supplement or clarify the job description in response to a request for evidence (RFE), any material change that would require a new LCA or is made solely to align with the LCA could be viewed negatively by the USCIS.

It also is important to note, although the USCIS will scrutinize the wage level designation, it has confirmed that wage level alone is not determinative of whether a position qualifies as a specialty occupation. However, a mismatch between the wage level and job duties could raise red flags, potentially leading to additional scrutiny or denial.

Conclusion

With the new regulation now in place, employers must ensure that the wage level selected on the LCA accurately reflects the job duties of the H1B position. Under the Trump administration, we expect this regulation to be used more regularly to challenge various aspects of the LCA, including the wage level. Accordingly, properly following DOL guidance is crucial in demonstrating that the LCA appropriately supports the H1B petition.

At the Murthy Law Firm, we review the job duties and the entire petition with this regulation in mind, ensuring that our clients’ filings are as strong as possible to withstand increased scrutiny. Taking these steps can help minimize the risk of RFEs and denials, ensuring a smoother H1B adjudication process.

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