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How to Respond to an H-1B Wage Level RFE in New York

If USCIS is challenging your H-1B petition because of a Level 1 or entry-level wage on your Labor Condition Application (LCA), you are not alone. This guide explains how to counter the agency's flawed logic using established federal and administrative precedents. Learn how to protect your career or your employee's petition and win an approval.

What the Law Says in New York, United States

Under federal immigration law, specifically the Immigration and Nationality Act (INA) § 214(i)(1) and 8 C.F.R. § 214.2(h)(4)(iii)(A), an H-1B petition must demonstrate that the offered position qualifies as a 'specialty occupation'. This requires proving that the role normally demands at least a bachelor’s degree (or its foreign equivalent) in a specific specialty. Many highly skilled foreign graduates, coming to the United States from countries like India, China, or Canada, logically begin their careers at entry-level pay.

Concurrently, the Department of Labor (DOL) has its own regulatory framework under 20 C.F.R. § 655.731, establishing four distinct prevailing wage levels based on the complexity of the role. Level 1 is designated for entry-level positions where professionals perform routine tasks under close supervision. Historically, U.S. Citizenship and Immigration Services (USCIS) has tried to claim that if a job is paid at Level 1, it cannot be a complex 'specialty occupation'.

In New York, United States, federal courts have aggressively rejected this agency overreach. In the landmark Southern District of New York case *Next Generation Technology, Inc. v. Johnson*, 328 F. Supp. 3d 252 (S.D.N.Y. 2017), the court held that there is no logical contradiction between a position requiring a highly specialized degree and that same position being designated at a Level 1 wage. Denying an H-1B simply because of an entry-level wage is an abuse of agency discretion.

Unpacking the USCIS 'Level 1 Wage Trap'

When USCIS issues a Level 1 Wage Request for Evidence (RFE), they are attempting to lock the employer into a logical trap. The agency will claim that if your position is truly a 'specialty occupation,' it cannot possibly be performed by an entry-level worker earning a Level 1 wage. Conversely, they argue that if the position is basic enough to justify a Level 1 wage, it cannot require a specialized bachelor's degree.

This aggressive scrutiny unfairly targets early-career professionals and creates artificial barriers. Fortunately, the Administrative Appeals Office (AAO) has repeatedly stepped in to correct this flawed reasoning. In both *Matter of B-C-, Inc.*, ID #1139516 (AAO Jan. 25, 2018) and *Matter of G-J-S-USA, Inc.*, ID# 1182139 (AAO Jan. 25, 2018), the AAO firmly established that Level 1 wage designations are not determinative of specialty occupation status. The AAO ruled that 'there is no inherent inconsistency between an entry-level position and a specialty occupation'.

Every prestigious professional field—including medicine, law, and engineering—has entry-level roles. A junior engineer or an entry-level software developer still utilizes complex theoretical knowledge from day one, even if they require structured supervision and close review by senior team members.

Responding Effectively and Your Next Steps

To beat a Level 1 Wage RFE, your petitioning employer must submit a robust, highly detailed response within the strict timeline printed on your USCIS Form I-797 (typically 84 days under 8 C.F.R. § 103.2(b)(8)(iv)). Simply arguing back is not enough; you must provide concrete evidence that harmonizes the specialty of the job with the close supervision of a Level 1 role.

This evidence should include a highly itemized breakdown of your daily duties, showing how the theoretical knowledge of your degree is necessary to execute even the entry-level tasks. Additionally, an Expert Opinion Letter from a credentialed academic can provide objective proof that your industry routinely requires a bachelor's degree for entry into the role, regardless of the entry-level wage.

Please note that this guide does not constitute formal legal advice, and Caunsel is not a law firm. However, navigating the complex intersection of DOL and USCIS regulations is highly stressful, and you do not have to do it alone. You can use Caunsel to research prevailing wage rules, securely save and organize your RFE documents in a centralized case file, or connect directly with an independent New York immigration lawyer to draft a winning response brief.

Steps

• Verify the exact RFE deadline on your USCIS Form I-797 notice to ensure compliance under 8 C.F.R. § 103.2(b)(8)(iv).
• Obtain an Expert Opinion Letter from an academic or industry authority confirming that a bachelor's degree is standard for the entry-level role.
• Draft a detailed chart breaking down daily duties, demonstrating how even basic execution of these tasks requires highly specialized theoretical knowledge.
• Work with your petitioning employer to document the exact level of supervision you will receive, aligning with the DOL's description of Level 1 wages.

Common mistakes

• Attempting to retroactively upgrade your wage level: You cannot change the certified Labor Condition Application (LCA, Form ETA-9035) after the petition has been filed; your response must defend the original Level 1 selection.
• Failing to document supervision: USCIS will deny the case if you do not explain how the worker is closely supervised, which is a core requirement for a Level 1 wage.
• Relying on generic job descriptions: Using copy-pasted descriptions from O*NET online without mapping them to your specific company projects will trigger immediate skepticism from the adjudicator.

Questions people ask

Can an entry-level (Level 1 wage) position really qualify as an H-1B specialty occupation?

Yes. Under binding AAO decisions like *Matter of B-C-, Inc.*, there is no inherent contradiction. Entry-level professionals (including medical residents and junior software engineers) routinely begin at Level 1 while performing specialty work.

What happens if we miss the RFE response deadline?

Under 8 C.F.R. § 103.2(b)(8)(iv), the deadline is absolute. If USCIS does not receive your complete response by the printed deadline (typically 84 days), they will deny the H-1B petition, and the beneficiary may lose their legal status.

Can my employer just pay me more to bypass the RFE?

No. You cannot retroactively change the certified Labor Condition Application (LCA) that supported the original filing. The response must defend the wage level selected at the time of filing, rather than trying to pay a higher wage retroactively to fix the RFE.

General information only, last updated 2026-09-23. Caunsel is not a law firm and does not practise law. AI answers and this guide are not legal advice. Verify filings, deadlines, and statutes with a licensed lawyer in New York, United States — immigration.