Equity-Rich, Salary-Light: The H-1B Wage and SOC Code Audit for Senior Technology Executives

Written November 6, 2026. Reviewed by Rebecca Bentley, Esq.

TLDR:

• A senior title and a large equity grant do not, by themselves, make an H-1B position approvable.
• The H-1B required wage is measured in cash wages paid through payroll, against a prevailing wage set by the position’s SOC code, wage level, and actual work location.
• Companies hiring founders and senior technology executives on equity-heavy packages benefit from a pre-offer review of title, duties, occupational classification, worksite, and cash compensation before the offer letter is signed.

Technology companies compete for senior talent with equity. A CTO joining a Series B company may accept a modest base salary because the stock grant is where the real upside lives. The H-1B program sees it differently. Immigration rules care about the cash that lands in the employee’s paycheck, the occupation the job actually falls into, and the city where the work is performed. A package that looks generous on a term sheet can fall short on a Labor Condition Application. Fixing that gap after the offer is signed is harder and more expensive.

This guide walks through how the wage and classification analysis works for senior hires, using anonymized scenarios that reflect the questions growing companies ask most often.

What the LCA Means for H-1B Employees

Every H-1B petition starts with a Labor Condition Application, or LCA, filed with the U.S. Department of Labor. In plain terms, the LCA is the employer’s sworn promise about the job. It turns on three choices:

• The SOC code. The Standard Occupational Classification code places the job into a federal occupational category, such as Software Developers, Computer and Information Systems Managers, or Chief Executives.
• The wage level. The Department of Labor’s OEWS wage data divides each occupation into four levels, from entry level (Level I) to fully competent and highly experienced (Level IV), based on the job’s duties and requirements.
• The area of intended employment. Prevailing wages are set by metropolitan area, so the same job can carry very different wage floors in San Francisco and in Buffalo.

The employer must then pay at least the “required wage,” which is the higher of the prevailing wage for that SOC code, level, and location, or the actual wage the company pays similar employees.

Why Equity Does Not Count Toward the Required Wage

Here is where equity-heavy packages run into trouble. Under Department of Labor regulations, the required wage must be paid in cash, shown in payroll records as earnings, and delivered “free and clear” when due. Stock options, RSUs, profits interests, and similar equity do not satisfy that obligation, no matter how valuable they may become. Their value is not fixed, and the employee cannot spend it on payday.

Bonuses get partial credit. A future bonus can count toward the required wage only if payment is assured. A bonus tied to company revenue, a funding milestone, or board discretion is contingent, so it does not count unless the employer guarantees payment even if the condition is not met.

Equity still matters in a different way. H-1B employees must be offered benefits, including stock options and bonus programs, on the same basis as comparable U.S. workers. So the equity plan is part of the compliance picture, but it cannot fill a gap in cash pay.

Why the SOC Code Choice Carries More Weight in 2026

Two 2026 developments have raised the stakes of the H-1B SOC code choice.

The weighted H-1B selection process

The Department of Homeland Security’s weighted selection rule took effect February 27, 2026, and applied to the FY 2027 cap season. Instead of a purely random lottery, each registration now receives one to four entries depending on the highest OEWS wage level the offered wage meets or exceeds for the SOC code and work location. Employers must list the SOC code, area of employment, and wage level at registration, and the later petition and LCA must line up with those representations.

That means the SOC code and cash salary now affect not only whether a petition is approvable, but how likely a cap-subject candidate is to be selected at all. Material changes between registration and filing are likely to draw scrutiny.

The proposed prevailing wage increase

On March 27, 2026, the Department of Labor proposed raising the percentiles behind each wage level. Level I would move from roughly the 17th to the 34th percentile, Level II from the 34th to the 52nd, Level III from the 50th to the 70th, and Level IV from the 67th to the 88th. The comment period closed May 26, 2026. The rule has not been finalized as of this writing, but if adopted it would apply to new LCAs filed after its effective date, including extensions and amendments.

For senior executives, the Level IV change is the one to watch. A base salary that clears Level IV today may not clear it after a final rule.

The Specialty Occupation Question Behind the Title

A strong wage analysis does not settle whether the job qualifies as a specialty occupation. USCIS looks at whether the position requires a bachelor’s degree or higher in a specific specialty, and whether that degree is directly related to the duties. A title like “Chief Executive Officer” or “President” can work against a petition when the duties read as general business leadership that many degree paths could support.

For technical executives, the stronger case often comes from describing the work accurately: architecture decisions, oversight of engineering teams, product security, data infrastructure. The SOC code has to match what the person actually does day to day. Choosing a code because it carries a lower wage, when the duties point elsewhere, creates real compliance exposure.

Three Anonymized Compensation Scenarios

The figures below are illustrative only. Actual prevailing wages depend on the specific SOC code, wage level, and location at the time of filing.

Scenario 1: The Series B CTO

A venture-backed software company offers a CTO a $170,000 base salary, a 30% target bonus tied to annual revenue goals, and an RSU grant valued at roughly $2 million over four years. The applicable Level IV wage for the likely SOC code in the company’s metro area is higher than the base salary.

On paper, total compensation is well above any wage floor. For H-1B purposes, only the $170,000 counts. The revenue-linked bonus is contingent, and the RSUs are equity. Options worth discussing include raising base salary, converting part of the bonus into a guaranteed payment made within the year, or confirming whether a lower wage level is genuinely supported by the job’s requirements. Each option has tax, payroll, and board-approval consequences, which is why compensation counsel belongs in the conversation.

Scenario 2: The Founder Who Defers Salary

A founder holding a significant ownership stake plans to draw $90,000 a year and defer the rest until the next financing round. The company wants to sponsor the founder’s H-1B.

Since January 2025, USCIS rules allow beneficiary-owners with a controlling interest to qualify for H-1B, though initial approvals are limited to 18 months. But deferral does not work. The required wage must be paid on payroll when due, and executive classifications often carry some of the highest prevailing wages in the OEWS data. The duties also need careful framing to show a specialty occupation rather than general management. This scenario often calls for a frank conversation about cash runway before filing.

Scenario 3: The VP of Engineering Who Works Remotely

A VP of Engineering plans to work remotely from a lower-cost metro area while the company’s headquarters sits in a high-cost market. The prevailing wage follows the employee’s actual worksite, not the headquarters address.

That can lower the wage floor, but it can also change the wage level the salary reaches, which affects lottery weighting for a cap-subject candidate. If the executive later relocates outside the original area, a new LCA and possibly an amended petition may be required. Payroll, state tax registration, and the LCA all need to tell the same story.

What a Pre-Offer Review Covers

The most effective time to run this analysis is before the offer letter goes out. A thorough review typically includes:

• Duties first. A detailed, accurate description of the work, separate from the title.
• SOC code selection. Matching those duties to the right occupation and testing reasonable alternatives.
• Wage level analysis. Comparing the cash offer against each OEWS level, and considering whether a qualifying private wage survey is appropriate.
• Worksite mapping. Confirming primary and secondary work locations, including remote arrangements.
• Compensation design. Identifying which pay components count as cash wages and which are benefits, then coordinating with employment and compensation counsel on any restructuring.
• Fee and timing review. Accounting for current filing costs and pending rules. The $100,000 H-1B payment under the September 2025 proclamation is currently blocked by federal court orders, while a separate DHS fee proposal remains under review.

Getting the Offer Right Before It Is Signed

Senior hires are high-stakes for everyone involved, and the filing has to hold up to review by two federal agencies. When the title, duties, SOC code, worksite, and cash pay are aligned from the start, the petition reflects the business as it really operates, and leadership can focus on building the company.

Berardi Immigration Law works with growing technology companies, founders, and their compensation and employment advisors to structure H-1B positions for senior executives before offers are finalized. Nobody should navigate immigration alone, and that includes the people building the companies of tomorrow. Contact our team to schedule a pre-offer review.

FAQs

Q: Can stock options or RSUs (Restricted Stock Units) count toward the H-1B prevailing wage?

No. Department of Labor rules require the required wage to be paid in cash through payroll, free and clear, when due. Equity can be part of a strong compensation package, and H-1B employees must be offered it on the same basis as U.S. workers, but it does not satisfy the wage obligation.

Q: How do I find the right SOC code for an H-1B executive role?

The SOC code should be based on the job’s actual duties, not its title. For technology executives, common options include Computer and Information Systems Managers, Architectural and Engineering Managers, and Chief Executives, but the right choice depends on how the person spends their time. An immigration attorney can compare the duties against each occupation’s definition and its wage data.

Q: Does a remote executive’s home location change the H-1B wage?

Yes. Prevailing wages are tied to the area where the employee actually works, so a remote executive’s home metro area usually controls. A move outside that area during the H-1B period may require a new LCA and, in some cases, an amended petition.