Employers who seek to
hire an H-1B nonimmigrant in a specialty occupation must first make a filing
with the Department of Labor (DOL) and obtain a Labor Condition Application
(LCA). The LCA, among other things, must specify the number of workers sought,
the occupational classification in which the H-1B will be employed, and the
wage rate and conditions under which the proposed H-1B nonimmigrant will be
employed. In addition, the employer must attest that it is offering, and will
offer, during the period of H-1B employment the greater of: (1) the actual wage level paid by the employer to all
other individuals with similar experience and qualifications for the specific
employment in question; OR (2) the prevailing wage level for the occupational
classification in the area of employment.
hire an H-1B nonimmigrant in a specialty occupation must first make a filing
with the Department of Labor (DOL) and obtain a Labor Condition Application
(LCA). The LCA, among other things, must specify the number of workers sought,
the occupational classification in which the H-1B will be employed, and the
wage rate and conditions under which the proposed H-1B nonimmigrant will be
employed. In addition, the employer must attest that it is offering, and will
offer, during the period of H-1B employment the greater of: (1) the actual wage level paid by the employer to all
other individuals with similar experience and qualifications for the specific
employment in question; OR (2) the prevailing wage level for the occupational
classification in the area of employment.
If required to pay the
prevailing wage, the wage must be 100% of the prevailing wage. The prevailing
wage is determined for the occupational classification in the area of intended
employment and must be determined as of the time of the filing of the LCA[i].
The regulations require that the
prevailing wage be based upon the best information available. An employer that
fails to pay wages as required is liable for back wages equal to the difference
between the amount that should have been paid and the amount that was actually
paid.
prevailing wage, the wage must be 100% of the prevailing wage. The prevailing
wage is determined for the occupational classification in the area of intended
employment and must be determined as of the time of the filing of the LCA[i].
The regulations require that the
prevailing wage be based upon the best information available. An employer that
fails to pay wages as required is liable for back wages equal to the difference
between the amount that should have been paid and the amount that was actually
paid.
The prevailing wage is
determined by a Collective Bargaining Agreement (CBA) if one exists that
pertains to the occupation at the place of intended employment. If the job offer is for an occupation not
covered by a CBA and the employer does not choose to provide a survey or
request the use of a current wage determination in the area, the wage component
of the Bureau of Labor Statistics (BLS), Occupational Employment Statistics
(OES) survey[ii] should be used to
determine the prevailing wage for the prevailing wage in connection with an
employer’s job offer.
determined by a Collective Bargaining Agreement (CBA) if one exists that
pertains to the occupation at the place of intended employment. If the job offer is for an occupation not
covered by a CBA and the employer does not choose to provide a survey or
request the use of a current wage determination in the area, the wage component
of the Bureau of Labor Statistics (BLS), Occupational Employment Statistics
(OES) survey[ii] should be used to
determine the prevailing wage for the prevailing wage in connection with an
employer’s job offer.
Although employers are not required to keep and maintain position
descriptions, regulations require an employer to keep and maintain a copy of
the documentation the employer used to establish the ‘prevailing wage’ for the
occupation for which the H-1B nonimmigrant is sought or the underlying individual
wage data relied upon to determine the prevailing wage. This information may
have to be made available to the public (if requested) or it may have to be
made available to the DOL upon request or in connection with an enforcement
action.
descriptions, regulations require an employer to keep and maintain a copy of
the documentation the employer used to establish the ‘prevailing wage’ for the
occupation for which the H-1B nonimmigrant is sought or the underlying individual
wage data relied upon to determine the prevailing wage. This information may
have to be made available to the public (if requested) or it may have to be
made available to the DOL upon request or in connection with an enforcement
action.
The regulations
governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour
Division (WHD)[iii], to
determine whether an employer has the proper documentation to support its wage
attestation. Where the documentation is nonexistent or insufficient to
determine the prevailing wage, or where the employer has been unable to
demonstrate that the prevailing wage determined by an alternate source is in
accordance with the regulatory criteria, the Administrator may contact the Employment and Training Administration (ETA)[iv],
a part of DOL, to get the prevailing wage.
governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour
Division (WHD)[iii], to
determine whether an employer has the proper documentation to support its wage
attestation. Where the documentation is nonexistent or insufficient to
determine the prevailing wage, or where the employer has been unable to
demonstrate that the prevailing wage determined by an alternate source is in
accordance with the regulatory criteria, the Administrator may contact the Employment and Training Administration (ETA)[iv],
a part of DOL, to get the prevailing wage.
Once ETA provides the
prevailing wage, the Administrator is bound to use this determination as the
basis for determining violations and for computing back wages, if such wages
are found to be owed by an H-1B employer. It is important to highlight that the
regulation is permissive, and the ETA’s
determination is merely an option that the Administrator can use in its
investigation(s). This option is rarely used by Administrators during
investigations. If the employer fails to support, through proper
documentation, how it arrived at the prevailing wage level, the Administrator
can use the employer’s Letter of Support and I-129 forms submitted to theUnited States
and Citizenship Services (USCIS) for the approval of H-1B petition to determine
whether the employee was appropriately classified at the specific wage level. Thus, the alternative of not keeping
documents used in the determination of appropriate wage level is to maintain
the compatibility between the LCA and H-1B petition.
prevailing wage, the Administrator is bound to use this determination as the
basis for determining violations and for computing back wages, if such wages
are found to be owed by an H-1B employer. It is important to highlight that the
regulation is permissive, and the ETA’s
determination is merely an option that the Administrator can use in its
investigation(s). This option is rarely used by Administrators during
investigations. If the employer fails to support, through proper
documentation, how it arrived at the prevailing wage level, the Administrator
can use the employer’s Letter of Support and I-129 forms submitted to the
and Citizenship Services (USCIS) for the approval of H-1B petition to determine
whether the employee was appropriately classified at the specific wage level. Thus, the alternative of not keeping
documents used in the determination of appropriate wage level is to maintain
the compatibility between the LCA and H-1B petition.
The nature of the job
offer, the area of intended employment, and job duties for workers that are
similarly employed are the relevant factors used in determining a prevailing
wage rate. In determining the nature of the job offer, the first thing
to consider is the requirements of the employer’s job offer. Area of
intended employment means the area within normal commuting distance of the
place (address) of intended employment.
Regulations define similarly
employed as substantially comparable jobs in the occupational category in
the area of intended employment[v].
The required work and education and/or experience for a job impact the
determination of the prevailing wage level.
offer, the area of intended employment, and job duties for workers that are
similarly employed are the relevant factors used in determining a prevailing
wage rate. In determining the nature of the job offer, the first thing
to consider is the requirements of the employer’s job offer. Area of
intended employment means the area within normal commuting distance of the
place (address) of intended employment.
Regulations define similarly
employed as substantially comparable jobs in the occupational category in
the area of intended employment[v].
The required work and education and/or experience for a job impact the
determination of the prevailing wage level.
ETA provides guidance for determining the proper wage level for a
position. Level I wage rates are assigned to jobs offers for beginning or
entry-level employees who have only a basic level of understanding of the
occupation. Level I employees perform routine tasks that often requires limited
exercise of judgment. The guidance also states that Level II wage rates are assigned to job offers for qualified
employees who have attained, either through education or experience, a good
understanding of the occupation. They
perform moderately complex tasks that require limited judgment.
position. Level I wage rates are assigned to jobs offers for beginning or
entry-level employees who have only a basic level of understanding of the
occupation. Level I employees perform routine tasks that often requires limited
exercise of judgment. The guidance also states that Level II wage rates are assigned to job offers for qualified
employees who have attained, either through education or experience, a good
understanding of the occupation. They
perform moderately complex tasks that require limited judgment.
Level III wage rates
are assigned to job offers for experienced employees who have a sound
understanding of the occupation and have attained, either through education or
experience, special skills or knowledge. Frequently, key words in the job
title can be used as indicators that an employer’s job offer is for an
experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior
programmer), or ‘head’ (head nurse) would be indicators that a Level III wage
should be considered. Further, the Level IV wage level applies to highly-competent employees who have sufficient
experience in the occupation to plan and conduct work requiring judgment and
the independent evaluation, selection, modification, and application of
standard procedures and techniques. Level IV employees generally hold
management and/or supervisory roles and responsibilities.
are assigned to job offers for experienced employees who have a sound
understanding of the occupation and have attained, either through education or
experience, special skills or knowledge. Frequently, key words in the job
title can be used as indicators that an employer’s job offer is for an
experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior
programmer), or ‘head’ (head nurse) would be indicators that a Level III wage
should be considered. Further, the Level IV wage level applies to highly-competent employees who have sufficient
experience in the occupation to plan and conduct work requiring judgment and
the independent evaluation, selection, modification, and application of
standard procedures and techniques. Level IV employees generally hold
management and/or supervisory roles and responsibilities.
To better understand how the wage levels apply, consider an
example of job position that
requires either two years or more of experience or a Masters’ degree or higher.
Taking into consideration the above-mentioned guidelines, the employer should
use either a Level II or higher prevailing wage rate.
example of job position that
requires either two years or more of experience or a Masters’ degree or higher.
Taking into consideration the above-mentioned guidelines, the employer should
use either a Level II or higher prevailing wage rate.
In addition, it is important to mention that if an entry level job has
additional requirements or duties beyond that of those ordinarily required; the
employer should refrain from using a Level I prevailing wage.
additional requirements or duties beyond that of those ordinarily required; the
employer should refrain from using a Level I prevailing wage.
To summarize, and based on the foregoing, an employer hiring an H-1B
worker is required to pay the higher
of actual wage or prevailing wage. If paying the prevailing wage, the
wage must be 100% of the prevailing wage. Further, the determination of
prevailing wage depends on whether the occupation is covered by CBA or not. If the job offer is for an occupation not
covered by a CBA and the employer does not choose to provide a survey or
request use of a current wage determination in the area, the wage component of
the OES survey should be used to determine the prevailing wage. Moreover, the
employer is required to keep a copy of the documents used in determining the
appropriate wage level. If the employer fails to provide such documents, the
WHD Administrator may either contact the ETA to get the prevailing wage for the
offered position OR refer to the Letter of Support and/or I-129 forms submitted
to the USCIS with the H-1B petition to make a determination. Thus, the
alternative of not keeping documents used in the determination of appropriate
wage level is to maintain the compatibility between the LCA and the H-1B
petition.
worker is required to pay the higher
of actual wage or prevailing wage. If paying the prevailing wage, the
wage must be 100% of the prevailing wage. Further, the determination of
prevailing wage depends on whether the occupation is covered by CBA or not. If the job offer is for an occupation not
covered by a CBA and the employer does not choose to provide a survey or
request use of a current wage determination in the area, the wage component of
the OES survey should be used to determine the prevailing wage. Moreover, the
employer is required to keep a copy of the documents used in determining the
appropriate wage level. If the employer fails to provide such documents, the
WHD Administrator may either contact the ETA to get the prevailing wage for the
offered position OR refer to the Letter of Support and/or I-129 forms submitted
to the USCIS with the H-1B petition to make a determination. Thus, the
alternative of not keeping documents used in the determination of appropriate
wage level is to maintain the compatibility between the LCA and the H-1B
petition.
In conclusion, a prospective
H-1B employer should exercise caution in offering a wage to the prospective
H-1B employees that should be the greater
of either the actual or prevailing wage. If paying prevailing wage, the
employer should take into consideration the nature of the job offer, the
area of intended employment, and jobs duties for the proffered position in selecting the appropriate OES wage
level, or else they may find themselves facing WHD challenges with regard to
paying back wages.
H-1B employer should exercise caution in offering a wage to the prospective
H-1B employees that should be the greater
of either the actual or prevailing wage. If paying prevailing wage, the
employer should take into consideration the nature of the job offer, the
area of intended employment, and jobs duties for the proffered position in selecting the appropriate OES wage
level, or else they may find themselves facing WHD challenges with regard to
paying back wages.
[i]
In computing the prevailing wage for a job opportunity in an occupational
classification in an area of intended employment for an employee of: an
institution of higher education; an affiliated or related nonprofit entity; a
nonprofit research organization; or a governmental research organization; the
prevailing wage level should take into account the wage levels of employees
only at such institutions and organizations found in the area of intended
employment.
In computing the prevailing wage for a job opportunity in an occupational
classification in an area of intended employment for an employee of: an
institution of higher education; an affiliated or related nonprofit entity; a
nonprofit research organization; or a governmental research organization; the
prevailing wage level should take into account the wage levels of employees
only at such institutions and organizations found in the area of intended
employment.
[ii]
The OES survey is a semi-annual survey of approximately 200,000 non-farm
business establishments conducted by the Bureau of Labor Statistics (BLS), headquartered
inWashington , DC
in each state.
The OES survey is a semi-annual survey of approximately 200,000 non-farm
business establishments conducted by the Bureau of Labor Statistics (BLS), headquartered
in
in each state.
[v]
If no such workers are employed by employers other than the employer applicant
in the area of intended employment, it means: jobs requiring a substantially
similar level of skill within the area of intended employment; OR substantially
comparable jobs in the occupational category as employers outside of the area
of intended employment if there are no substantially comparable jobs in the area of intended employment.
If no such workers are employed by employers other than the employer applicant
in the area of intended employment, it means: jobs requiring a substantially
similar level of skill within the area of intended employment; OR substantially
comparable jobs in the occupational category as employers outside of the area
of intended employment if there are no substantially comparable jobs in the area of intended employment.
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