H-1B NOIRs and Wage Level Mismatches: Understanding USCIS Scrutiny Amid Growing Trend in H-1B Revocations

Our office has seen a notable trend of U.S. Citizenship and Immigration Services (USCIS) issuing Notices of Intent to Revoke (NOIRs) for already approved H-1B petitions.  This action frequently stems from post-approval compliance checks, particularly site visits and interviews with the beneficiary, the petitioner and, where applicable, the corresponding client management, which reveal discrepancies between the designated wage level on the Labor Condition Application (LCA) and the actual experience requirements of the position.

USCIS may revoke an H-1B petition at any time if it finds that the statement of facts contained in the petition or LCA was “not true and correct, inaccurate, fraudulent, or misrepresented a material fact,” or if the petitioner violated the terms and conditions of the approved petition. The core issue often revolves around whether the employer submitted a certified LCA that accurately reflects a wage level which corresponds with the requirements of position.

Site Visits Expose Higher Experience Demands

A key method USCIS uses to identify non-correspondence is conducting site visits by Immigration Officers (IOs). These visits involve verifying the beneficiary’s working arrangement and interviewing relevant client personnel.

In recent cases which our office has seen, these interviews have uncovered specific experience requirements for the H-1B role that contradict the wage level designation initially provided on the LCA.  For instance, USCIS noted instances where a position designated with a Wage Level II for a Software Developer occupation, was found to actually require five years of experience in relevant technologies in addition to a bachelor’s degree in a related field.

The Prevailing Wage Mismatch

According to the Department of Labor’s (DOL) Prevailing Wage Policy Guidance, prevailing wage determinations start at Level I (entry level) and are adjusted higher based on requirements for experience, education, training, special skills, and supervisory duties.

If the experience required is significantly greater than the O*NET Job Zone’s entry level, the appropriate wage level increases (Level II, Level III or Level IV).   If USCIS, based on high experience cited in interviews during site visits, concludes that the position appears to require experience beyond what is generally required for the occupation and the wage level designated on the LCA, they would likely find that the LCA wage level designation is inconsistent with the actual position requirements.   Essentially, USCIS takes the position that the Wage Level misclassification renders the LCA invalid for the H-1B petition and this allows them to seek to revoke it.

Strategies for Defending Against Accusations of LCA Wage Level Mismatch:  Challenging the Wage Level Designation (Minimum vs. Preferred)

Successful defense strategies generally focus on clarifying the actual position requirements and that they are in line with the wage level set forth in the LCA.     Many of these NOIR proceedings are very case- and fact-specific because they stem from series of meetings, interviews and document requests between USCIS and the beneficiary, the petitioner and, if applicable, the end client.    When USCIS seeks to revoke an H-1B petition they normally come with a fairly detailed factual record.      A successful NOIR defense will need to clarify the facts (mainly the position requirements) and then apply them in a prevailing wage level calculation confirming the correct LCA wage level.

The primary defense against an elevated wage level requirement is to clearly differentiate between the minimum, non-negotiable requirements for the specialty occupation and the highly desired skills mentioned during recruitment or client interviews.

Clarify Minimum Educational Requirements

The petitioner may be able to argue that the essential minimum requirement for the position remains a bachelor’s degree in the specific field (e.g., Computer Science or a closely related field). This educational minimum is generally consistent with a lower wage level designation (like Level I or Level II for an experienced professional who may not yet be supervisory or highly expert).

Clarify and Describe Specialized Experience as Preference

Specific requirements mentioned by managers during site visits, such as “over 6 years of experience in integration platform,” may be explicitly characterized as supplementary qualifications or strong preferences.   The goal is to demonstrate that these experience metrics were used to identify the ideal candidate to “streamline the recruitment process for a highly specialized skill set” or integrate into a specific project.   The argument should clarify that these preferences do not elevate the position’s minimum requirement above the stated educational (and experience, if any) requirements for the occupation, thus supporting the original LCA’s lower wage level.   Documentation detailing the specific tasks and knowledge (like an official job description) should support the argument that the job duties are consistent with a position requiring only a bachelor’s degree in the field.

Essential Documentation for Rebuttal

In our experience a successful rebuttal should include comprehensive supporting evidence such as:

• Form ETA 9141, if used to obtain a prevailing wage determination, should be included.   Unfortunately, using ETA 9141 is rare in the H-1B context mainly for practical reasons as it takes 5-6+ months to obtain one.   Having one, however, is one of the strongest defenses against Wage Level mischaracterization assuming the position requirements described on the ETA 9141 match the actual position requirements.
• Position documentation such as job description, job announcement, job posting or similar is key.    This documentation will help establish the nature of the actual position and can be used as the basis for selecting the occupation and wage level certified on the LCA.  This document must detail the tasks, knowledge, skills, the explicit experience (if any) and education requirements of the position.   This can be job announcements,  job order solicitations, project plans,  contracts, SOW, and many other.
• Affidavits from key personnel—including from the petitioner, the beneficiary and the end client —should be submitted to explain the actual position requirements.   These documents also help clarify the facts in the record and correct any facts that may have been incorrectly recorded by USCIS during the site visit.

Finally, all of the arguments can be laid out in a detailed brief (authored by lawyer) explaining precisely how the initial wage level designation properly corresponds to the proffered position, addressing the distinction between minimum specialty occupation requirements (bachelor’s degree) and preferred specialized experience levels.

Have Plan “B”

In addition to putting up a robust NOIR defense, we recommend creating a Plan B in the event of a revocation.   Depending on the specific case circumstances, this can include preparing to file an H-1B amendment (with or without extension),  filing for a change of status or even departing the U.S.     Our office can help with this as well.

Conclusion

Our office will continue monitoring related developments and provide updates.    Please do not hesitate to contact us if we can be of any help in preparing or otherwise assisting with H-1B petitions including issues relating to the LCA Wage Level discrepancy.    Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topic.

Frequently Asked Questions for Beneficiaries