H-1B Visas and the Level 1 LCA

In an unprecedented move, in 2017 USCIS issued requests for evidence (RFEs) that challenged the professional nature of an H-1B petition’s position if it were based on a Labor Condition Application (LCA) with a level 1 prevailing wage. My office filed responses to these RFEs with copious and compelling arguments for why a level 1, entry level, position is still a specialty occupation for H-1B purposes.

Some employers may be inclined to raise the prevailing wage to a level 2 to avoid such a challenge. However, this is risky, since an employer must base its designation on the actual requirements of the position and can be penalized for failing to provide accurate information. A prevailing wage assessment includes the level of education, experience requirements and whether there are any supervisory duties and special skills.

The employer may file an H-1B petition based on an LCA with a prevailing wage assignation that is based on an actual determination from the Department of Labor. Under the Safe Harbor rule, if the case is audited, the DOL may not challenge the prevailing wage determination. Most employers do not obtain a prevailing wage determination though and instead prepare themselves to justify the level they chose if audited.