When employers bump pay to Level 2 for better lottery odds but job duties still match Level 1 — the specialty occupation scrutiny risk
With the new wage-weighted lottery giving Level 2 workers twice the selection odds of Level 1, a predictable behavior has emerged: employers bumping salaries to meet Level 2 prevailing wage thresholds without changing the actual job duties. USCIS is aware of this strategy and immigration attorneys are divided on the RFE risk.
Quick Answer: Paying Level 2 wages for a Level 1 position is legal — employers can pay above the prevailing wage. However, USCIS may issue an RFE if the job duties described in the petition match an entry-level position while the wage level suggests a more complex role. The key risk is inconsistency between the petition's duty description and the claimed wage level.
| Company | H-1B Filings | Common Filing Level |
|---|---|---|
| Amazon | 55,150 | Level 2-3 (SDE I-II) |
| Microsoft | 34,626 | Level 2-3 (SDE 59-62) |
| 33,416 | Level 3-4 (L4-L5+) | |
| Infosys | 32,840 | Level 1-2 (entry analysts) |
| Tata Consultancy Services | 28,950 | Level 1-2 (consultants) |
| Cognizant | 26,700 | Level 1-2 (technology analysts) |
| Deloitte | 18,200 | Level 2-3 (consultants) |
| Apple | 15,800 | Level 3-4 (ICT roles) |
DOL wage levels are based on job complexity, not just salary. Level 1 = entry-level with close supervision. Level 2 = qualified with limited supervision. Level 3 = experienced with broad independence. Level 4 = fully competent/expert. When an employer files an LCA at Level 2 wages but describes Level 1 duties in the I-129 petition, USCIS adjudicators can flag the inconsistency.
This does not mean the petition will be denied — paying above prevailing wage is allowed. But the RFE will request evidence that the position genuinely requires Level 2 complexity: independent judgment, specialized knowledge beyond entry-level, supervisory responsibilities, etc. The safest approach is to ensure the petition's job description actually reflects the complexity level matching the wage.
USCIS has historically used wage level as one indicator in specialty occupation determinations. A Level 1 wage filing for a "Software Engineer" role has been used to argue the position is entry-level and may not require a bachelor's degree in a specific field — the core specialty occupation test. By bumping to Level 2 wages but keeping Level 1 duties, employers create a new type of inconsistency that adjudicators are increasingly trained to spot.
Search Wisa for H-1B sponsors and understand wage level filing patterns to avoid RFE risks.
Search Wage Level Data →Search thousands of verified H-1B sponsors by company, industry, and location.
Search H-1B Sponsors on Wisa →No — paying above the prevailing wage is always legal. The LCA requires paying AT LEAST the prevailing wage for the level claimed. Paying more than required is fine. The risk is not with DOL; it is with USCIS, which may question whether the position truly requires Level 2 complexity based on the job description in the petition.
USCIS cannot deny solely based on wage level — they can deny based on specialty occupation grounds if the job duties do not demonstrate sufficient complexity for the claimed level. The wage level itself is determined by the employer and certified by DOL. However, USCIS uses the wage level as one factor in assessing whether the role is truly a specialty occupation.
You can discuss it, but ensure the job description is updated to reflect Level 2 complexity. Simply paying more without adjusting duties creates an inconsistency that USCIS may flag. A better approach: have your employer document the genuine complexity of your role — most positions have elements that justify Level 2 if properly described.
The employer can respond to the RFE by either (a) providing additional evidence of job complexity justifying Level 2, or (b) amending the wage level down to Level 1 with corresponding duty description. Option (b) means your petition proceeds but at Level 1 complexity — your actual salary does not need to change since paying above prevailing wage is always permitted.