How to Determine H-1B Wage Level Using OFLC Step-by-Step

USCIS issues H-1B RFEs most commonly for wage level discrepancies, employee-employer relationship concerns, and specialty occupation requirements. For specialty occupation RFEs, employers must prove no qualified US workers exist for the position. Effective responses include job descriptions showing minimum qualifications, expert letters confirming unique qualifications, and evidence proving the candidate is a perfect match. Wage level RFEs arise when highly qualified candidates are placed in entry-level positions with higher salaries. O-1 visa applicants must meet at least three of eight criteria, with USCIS scrutinizing all claims because all applicants claim extraordinary ability. Original contributions to the field face particular scrutiny. Strong applications require concrete numbers and data rather than vague assertions. Expert letters should be specific and detailed, describing the applicant's specific contributions to projects.

Specialty occupation RFEs occur when USCIS questions whether a job requires a bachelor's degree. Prevention strategies include selecting the correct O*NET code (reducing RFE risk by over 90%), ensuring wage levels match job complexity, and providing detailed job descriptions of at least one full page. Common RFE triggers are weak job duties, low wage levels, and occupations inherently prone to scrutiny. When responding to RFEs, effective approaches include adding detailed percentages to job duties, obtaining expert opinions from university professors, providing hiring standard evidence, and including client letters confirming specialized skill requirements.

H-1B wage levels are determined based on years of experience and seniority. Positions requiring five or more years of experience typically require Level 4 wage filing. If filed at Level 3, applicants may receive a Request for Evidence (RFE) questioning the wage level. USCIS has a 20-page policy memorandum on wage analysis, but current RFEs may have holes that can be addressed with strong legal arguments. The likelihood of RFEs increases as USCIS develops more refined standards in this area. While RFEs on wage levels are common, they can often be overcome with strong legal arguments. The current window for successful responses may be limited as USCIS sharpens its legal arguments over time.

When receiving an RFE, applicants should: (1) Note the submission date and response deadline (typically 3 months); (2) Compile comprehensive evidence rather than rushing; (3) Submit all evidence simultaneously in one package (partial submissions cause denial); (4) Include certified translations for all non-English documents; (5) Contact USCIS at 1-800-375-5283 if no response within 60 days. Proper RFE response prevents case delays and denials.

When USCIS issues a Request for Evidence (RFE), applicants must follow specific protocols to avoid case denial. First, note the RFE issuance date to understand the response timeline. Second, check the deadline (typically 90 days). Third, read all pages of the RFE document thoroughly to identify exactly what evidence is requested. Fourth, submit all requested evidence together in one submission rather than in parts, as USCIS will base decisions on the first evidence submitted. Fifth, include certified translations for any non-English documents. Sixth, if no response is received within 60 days, contact USCIS at 1-800-375-5283.

The Trump administration proposed replacing the H-1B visa lottery system with a wage-based selection model that prioritizes higher-paid and higher-skilled foreign workers, with jobs grouped into wage levels and employers required to pay an annual fee of $8,873,900 for new visas; this reform aims to raise wages paid to H-1B workers by $52 million in 2026 and reach $2 billion annually by 2029, though it may disadvantage small businesses and fresh graduates while benefiting big tech companies.

A new wage-based allocation system has been proposed for the H-1B lottery, where higher salaries according to prevailing wages result in higher selection likelihood. The system uses OES wage levels (1-4), with proposed automatic selection for Level 4 and 3, automatic rejection for Level 1, and partial selection for Level 2. Employers must disclose proposed salaries during registration, and the wage takes effect only on October 1st if selected. This system could affect employer hiring decisions and employee job choices.

A new proposed rule called 'weighted selection process for registrants and petitioners seeking to file cap subject H1B petitions' would tie selection chances to wage levels. Similar to a previous Trump administration proposal that was blocked by courts, this rule would give higher wage levels better selection chances. For example, wage level 2 registrations might be counted twice, while wage level 3 might be counted three times. This creates significant anxiety among new graduates who typically take entry-level positions.

The H-1B visa allows US companies to hire foreign workers with specialized skills, with 65,000 regular cap and 20,000 master's cap visas issued annually. Due to high application volumes, a lottery system was used. On December 23, 2025, DHS and USCIS finalized a wage-based selection rule effective February 27, 2026, for FY2027. Selection now depends on wage levels (1-4), with higher levels receiving more entries. Employers must provide OEWS, wage level, SOC code, and job location during registration. Wage levels depend on job role, city, and DOL prevailing wage data, not just salary. The rule aims to reduce cheap labor misuse and protect US wages. Critics argue it affects small companies and entry-level roles. The Masters Cap still exists. The 100K fee mentioned in a presidential proclamation faces legal challenges and does not apply to existing holders or transfers. The O-1 visa for extraordinary ability has no cap but requires strong evidence. H-1B and O-1 serve different purposes. The rule may face court challenges, delays, or modifications.

The proposed H-1B wage-based system is a White House proposal that would replace the random lottery with a tiered system where higher salaries increase approval chances, but this remains a proposal requiring public comment, legal review, and must be reasonable to pass; salary tiers will vary by industry and location, making blanket rules impractical, and similar proposals have previously been struck down by courts.

The PERM (Program Electronic Review Management) labor certification is the first mandatory step in EB-2 or EB-3 green card applications, requiring employers to demonstrate they cannot find qualified U.S. workers for a position by obtaining a prevailing wage from the Department of Labor, conducting a 30-day recruitment period through various advertising channels (newspaper ads, trade publications, online postings, radio, career fairs, and employer websites), and filing Form ETA 9089; common mistakes include incorrect addresses, incomplete experience details, and wrong prevailing wages, which can be fatal to the case, making it essential to work with an experienced attorney who conducts thorough issue spotting and maintains clear communication throughout the process.

The PERM (Program Electronic Review Management) labor certification is a Department of Labor process that certifies no qualified American workers are available for a position, serving as a prerequisite for green card applications through EB-2 and EB-3 categories; certain licensed professions like physical therapists and nurses receive automatic certification, while others must demonstrate prevailing wage requirements and advertise job openings in newspapers, though these regulations are outdated and face significant processing delays with green card backlogs extending to 2026 for applications filed in 2012-2013.

The Department of Labor determines the prevailing wage for a PERM position based on the geographic location and job classification. The employer must pay this wage to the beneficiary. The prevailing wage is determined by consulting the Occupational Dictionary and considering the specific job requirements. The Department of Labor provides the official wage determination that the employer must follow when advertising the position.

The Labor Certification (PERM) process is the first stage of employment-based green card applications (EB-2 and EB-3 categories), involving several key phases: attorney preparation including company registration with the Department of Labor, prevailing wage determination (typically taking 3-4 months), recruitment of six forms for professionals, a mandatory 30-day waiting period after recruitment completion, application submission to the Department of Labor, potential audit review (adding 6+ months), and final certification valid for only 180 days; the entire process typically takes 6-12 months without complications, with audits extending timelines significantly.

Employment-based green cards require employer sponsorship and generally prohibit unauthorized work. The main categories are EB-1 (priority workers with extraordinary ability), EB-2 (advanced degrees or exceptional ability), and EB-3 (skilled, professional, and unskilled workers). Most require the PERM process: obtaining prevailing wage determination, publishing job advertisements, and demonstrating no qualified U.S. workers exist. This process takes about a year and protects American workers.