H-1B Extensions at Wage Level II

If your H-1B extension is filed at wage Level II, USCIS can ask whether Level II fits the experience and degree written into the job, not only whether your salary clears a number. That test is not new, and we found no 2026 USCIS memo, Policy Manual change or final rule saying Level II jobs must now be Level III. What is on the record: a May 18, 2026 decision of the USCIS Administrative Appeals Office (AAO) about an approved extension that USCIS revoked after finding Level II did not fit the job's stated requirements, and a DOL proposal to raise the wage at all four levels that is still not final as of October 18, 2026.

Sources: eCFR (8 CFR 103, 214.1, 214.2 and 274a.12; 20 CFR 655.730 and 655.731; current as of October 15, 2026); DOL Prevailing Wage Determination Policy Guidance, revised November 2009; O*NET OnLine; AAO decisions of February 13, 2020, January 2, 2025 and May 18, 2026; USCIS Policy Manual, Adjudicator's Field Manual 40.9.2 and H-1B pages; USCIS Form I-129 data; 9 FAM 302.1; travel.state.gov; 90 FR 60864, 91 FR 15454, 91 FR 57807, 91 FR 60497 (Proclamation 11069) and 91 FR 65119; regulations.gov; DOL OFLC LCA disclosure files. Checked October 18, 2026. Not legal advice.

What decides a wage level

The wage on a Labor Condition Application (LCA) must be the greater of the employer's actual wage for similar workers or the prevailing wage (20 CFR 655.731(a)). DOL's Prevailing Wage Determination Policy Guidance (revised November 2009), which still guides its determinations, sets the level from the job's requirements, not from the salary:

• Every determination starts at Level I.
• Experience is compared with the occupation's O*NET Job Zone. At or below the start of the range adds nothing; the low end of the range adds one level, the high end two, above the range three.
• Education one category above the usual adds one, more than one adds two. Where a bachelor's is usual, a master's adds one.
• Special skills beyond those of an entry level worker can add one.
• Supervisory duties add one, unless supervising is normal for the occupation.

The total caps at Level IV. Title words such as "lead" or "senior" are Level III indicators, and the guidance says the process "should not be implemented in an automated fashion." For Software Developers (SOC 15-1252), O*NET lists Job Zone Four, which the guidance defines as "over 2 years up to and including 4 years" of experience. It draws no numeric line between the low and high end, so more than two and up to four years can be argued at different levels; more than four is above the range and adds three.

How a mismatch arises. The level is chosen when the LCA is filed, but the job's requirements also appear in the petition, support letters, any client letter, and answers to a USCIS inquiry or site visit. USCIS checks that the LCA "properly corresponds with the petition" (8 CFR 214.2(h)(4)(i)(B)(1)), and a January 2, 2025 AAO decision called this "a threshold issue." A mismatch arises when any of those documents states more experience, education, skill or supervision than the LCA level reflects; in each of the AAO cases cited here, that distance was the issue, and it is what the five steps measure. Because eligibility is judged on the facts at filing, a February 13, 2020 AAO decision says a material change calls for "an amended or new petition, along with a new LCA."

Salary is a separate test. Weighted selection (90 FR 60864, effective February 27, 2026) weights cap registrations by the highest level the salary meets, but the LCA level follows the requirements, and the decisions cited here do not say whether a higher salary cures a mismatch.

Reported cases

The AAO decision, a primary source. In a non-precedent decision of May 18, 2026, the AAO described a Software Developers extension filed in May 2025 at Level II (prevailing wage $101,109) and approved in June 2025. In November 2025 the employer's immigration services specialist told USCIS the job required a bachelor's degree and five years of experience. USCIS found those requirements "differed from those specified in the petition" and that Level II "did not correspond" to them, so the record did not show the worker employed "in the capacity specified in the approved petition" (8 CFR 214.2(h)(11)(iii)(A)(1)). It issued a notice of intent to revoke in January 2026 and revoked the approval on February 20, 2026, without considering the employer's timely response. The AAO withdrew the revocation and sent the case back. It did not rule on the requirements or the wage level, and this was a revocation, not a denial.

Official statistics. USCIS's quarterly I-129 data, counting first decisions on initial and extension H-1B petitions together, shows October to June denials of 6,339 of 310,464 (2.04%) in FY2025 and 8,231 of 278,650 (2.95%) in FY2026. It gives no reasons and does not count revocations, so it cannot show how many involved a wage level. Both figures come from the third quarter files, each counted about a month after June 30 (queried July 2025 and July 2026).

Self-reports. Public self-reports of wage-level denials are few, mostly undated and unverified; none we found came with a decision we could read. None of the 2,379 self-reported case milestones dated 2026 in GreenCardClock's community timelines, mostly green card cases, mentions an H-1B wage level. USCIS publishes no count of wage-level RFEs, denials or revocations.

Deference to an earlier approval

Today, 8 CFR 214.1(c)(5) gives deference to a prior approval with the same parties and facts, unless there was a material error, a material change, or new material information that adversely affects eligibility. On October 14, 2026, DHS proposed deleting it (91 FR 65119) for Form I-129 filings, H-1B extensions included; comments close November 13, 2026, and no effective date is stated. DHS estimates about 6,044 more RFEs a year and says its analysis "does not indicate an expected impact on denial rates." The proposal does not mention wage levels.

The wage rule DOL has proposed

DOL's proposed rule "Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States" (docket ETA-2026-0001, 91 FR 15454) was published March 27, 2026 and covers H-1B, H-1B1 and E-3 LCAs and PERM. Comments closed May 26, 2026; regulations.gov showed 1,298 posted comments as of October 18, 2026. As of that date, no final rule has been published and no effective date is set.

Today's levels come from DOL's 2005 Prevailing Wage Determination Policy Guidance, retained in 2009, not from regulation text: Level I is the mean wage of the lowest paid third of workers, Level IV the mean of the upper two thirds, and Levels II and III sit in equal steps between. DOL places them near these OEWS percentiles:

Levels II and III are interpolated in thirds between Levels I and IV, so 52nd and 70th are DOL's approximations. Today's percentiles are approximate too, because the current levels are means.

The proposal changes the wage at each level, not how a job is placed in one: DOL says the 2009 guidance "will continue to inform" its determinations. DOL estimates the average certified wage would rise about $14,000 a year.

Who it would and would not cover. It would cover prevailing wage requests pending on the effective date or filed after it, and LCAs filed after it that use OEWS data without an earlier wage determination. It would not reach determinations, PERM certifications or LCAs already approved. It does not address H-1B extensions by name; coverage turns on when the LCA or wage request is filed.

An approximate illustration. Certified Software Developers LCAs for Seattle worksites filed July 2025 to June 2026 carry, almost without exception, one prevailing wage per level: $117,749 (Level I), $149,240 (II), $180,710 (III) and $212,202 (IV). On DOL's percentile mapping, the proposed Level II (about the 52nd) would sit at or a little above today's Level III, roughly $31,000 a year more for a Level II job. Actual figures would depend on new OEWS calculations, including an 88th percentile BLS does not publish.

If an extension is denied

Two decisions. An extension filing asks USCIS to extend both the petition and the stay, with "a separate determination on each" (8 CFR 214.2(h)(15)(i)); the Policy Manual calls an approved petition with a denied stay a "split" decision.

Work and unlawful presence. The 240-day permission to keep working for the same employer during a timely extension ends "upon notification of the denial decision" (8 CFR 274a.12(b)(20)). For a timely, non-frivolous request denied for cause, unlawful presence "begins to accrue the day after the request is denied"; for a frivolous request or unauthorized work, it runs from the I-94 date (Adjudicator's Field Manual 40.9.2, still cited by USCIS). More than 180 days but under a year of it, followed by departure, brings a 3-year bar; a year or more brings a 10-year bar (INA 212(a)(9)(B)).

Grace periods. Up to 10 days after a validity period can be included at admission (8 CFR 214.1(l)(1)). Up to 60 days follows the end of employment, "or until the end of the authorized validity period, whichever is shorter," once per validity period, at DHS's discretion (214.1(l)(2)); USCIS says it ends on any departure. Both run inside a validity period, so once the I-94 date has passed before a denial, neither leaves time to run, and we found no USCIS statement applying either after a denied extension. On September 11, 2026, DHS proposed removing the 60 day period in 214.1(l)(2) (91 FR 57807); comments close November 10, 2026, and as of October 18, 2026 it is a proposal, not a final rule.

Motion. Form I-290B can ask USCIS to reopen (new facts, with evidence) or reconsider (law or policy misapplied to the record) within 30 days, or 33 if the decision was mailed (8 CFR 103.5(a)(1)(i), 103.8(b)). Filing does not stay the decision or stop unlawful presence, but a successful motion that grants the extension reaches back.

Appeal. A denied extension of stay "may not be appealed" (214.1(c)(7)). A denied or revoked petition can go to the AAO (214.2(h)(12)) on the same 30 or 33 day clock, as in the May 2026 case. An appeal does not stop unlawful presence either, though a reversal followed by a granted extension erases it.

A new petition. A new petition needs "a current or new certified labor condition application" (214.2(h)(2)(i)(E)); an LCA can be filed up to six months ahead and is usually decided within seven working days (20 CFR 655.730(b)). If status has already expired, an extension of stay on it needs USCIS to excuse the late filing, which requires "extraordinary circumstances beyond the control" of the filer (214.1(c)(4)).

Consular processing. travel.state.gov says "USCIS must first approve the Petition for a Nonimmigrant Worker, Form I-129" and "You may apply for a visa when USCIS has approved your petition." A denied or revoked petition leaves nothing to process abroad. If only the stay was denied, the approved petition can support a visa application, generally at a consulate where the applicant lives.

Travel. Someone admitted until a set date who filed on time, stayed past the I-94 date and was denied is subject to INA 222(g): that visa can no longer be used, and a new one generally has to be sought in the country of nationality (9 FAM 302.1-9(B)). Leaving while a timely, non-frivolous request is still pending carries a blanket exemption.

The $100,000 payment. USCIS's H-1B page (updated September 21, 2026) says that under the September 19, 2025 Proclamation, when a petition filed on or after September 21, 2025 requests an extension of stay and USCIS finds the worker ineligible for it, the payment applies; a granted extension does not trigger it. Proclamation 11069 of September 18, 2026 (91 FR 60497) extended the 2025 restriction for 12 months, to September 21, 2027. The USCIS page also says the U.S. District Court for the District of Massachusetts vacated the implementing guidance on June 8, 2026, the First Circuit denied a stay on July 24, and DHS "will comply" but "still plans to collect the payment" if the order is lifted.

These are options that exist, with their deadlines; which apply depends on the notice, the dates and the status history. An immigration attorney can tell you which, if any, fits your case.

What the LCA filing data shows

Level II is the most common level in these occupations. Shares are of certified H-1B and H-1B1 LCAs with a wage level, decided October 2025 through June 2026. These are filing volumes, not approvals.

Comparing April to June 2025 with April to June 2026, the cap filing quarter before and after weighted selection began, Software Developers new employment LCAs moved up: Level I went from 42.9% to 29.7%, and Levels III and IV together from 13.3% to 26.3%. Continuation LCAs (continued employment with the same employer, no change) did not: Levels III and IV together went from 50.5% to 45.6%. Timing is all this shows, and the data ends June 30, 2026.

Notes: Software Developers LCAs with no wage level rose from 8.7% to 15.7% between those quarters, which can move the shares; counted against all LCAs, both directions hold. The filing type split counts every LCA; single position LCAs are about 97% of these, and limiting the split to them moves no share by more than 0.2 points. Extensions that change the job are counted separately and are not in the continuation group. Counts are LCAs, not workers. Data sourced from DOL OFLC disclosure files.

Look up your occupation, employer and area

The Salary Explorer searches certified H-1B and H-1B1 LCAs decided April 2023 through June 2026 by employer, job title, state, city, wage, dates and filing type, including Continuation / Extension. Each result shows its wage level, and a title or employer search opens a Contract Rate panel with the median prevailing wage at each level.

A nationwide search for the title "Software Engineer" returns 208,096 full-time filings, 88% of them coded Software Developers. Level II is the largest group: 77,644 filings at a median prevailing wage of $109,283, against 23,537 at $88,442 for Level I, 42,472 at $139,589 for Level III and 35,880 at $157,643 for Level IV. The median offered wage is $145,000, with the middle half between $113,443 and $180,000. These counts leave out filings decided January to March 2025, whose job titles are blank in our copy of the DOL files. The medians also mix areas, wage years and occupations, so they are not the official figure for any job; DOL publishes those on its FLAG Wage Search at flag.dol.gov.

For your own case

With an RFE, a notice of intent to deny or revoke, or a denial, what matters is specific to the petition: the stated requirements, the SOC code, the area, the dates on the notice and the I-94, and any prior approvals. An immigration attorney can review those against the rules and decisions cited here.

General information only. Rules and USCIS pages as of October 18, 2026; USCIS petition data for October to June of FY2025 and FY2026; LCA data from DOL OFLC disclosure files for filings decided through June 30, 2026. Not legal advice.