my annual salary is $35000 only.When inquired about my prevailing wage being significantly low, I was told that my prevailing wage is $35000 when according to the LCA for H1-B requirement, it is $57000 in Dallas Metroplex. How do I approach my employer about this? Being a full time employee at this company for 8 months now, do you think I have been under paid as a candidate for H1-B for computer system analyst ? On the other note, what are the chances of my H1-B getting approved with the given prevailing wage of $35000?
As a practical matter you should consider what your options are if you leave this employer or you are terminated. It may be best to get into H-1 status next October which then means you can find another H-1 employer and not have to worry about the H-1 quota/lottery again. Losing the opportunity to try the lottery in 2014 is not in your best interest (unless of course you have another employer lined up before Feb 2014). Sometimes we have to concede the battle to win the war.
As for the prevailing wage, employers are free to use different categories for wages and this is often manipulated in odd ways to come up with substandard wages. When the employer submits the wage category to DOL on the LCA, DOL does not actually decide anything other than the employer does in fact have a wage from the FLC wage library. DOL does NOT verify if it is correct (unlike the labor certification process for the green card in which the DOL does make the wage determination). So, you are correct that the Comp Systems Analyst category in Dallas is $57K which means your employer is using another category.
Again, do we want to rock this boat now or what until you are safely in H-1 status next Fall?
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In what status are you working now? Are you on OPT? If indeed your employer will be filing for an H-1B on your behalf, he must pay you the wage in the LCA. If he does not, he can be subject to fines and an order to pay back wages. However, without seeing and reviewing the LCA and your job description, no opinion can be made or advice given.
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It appears that you are currently on OPT, and the employer will file a cap-subject H1B petition for you in April, 2014. If the LCA is certified by the Department of Labor, it will be attached to the H1B petition filed with the USCIS. The employer is legally required only to pay the salary as stated on the LCA, which will be the same amount on the H1B petition (Form I-129). Also note that employment is normally at-will, so a disagreement with your employer can result in the employer declining to file the H1B petition.
The salary amount can be a factor in considering whether the position is a specialty occupation requiring the minimum of a relevant bachelor's degree to perform the job, but vastly more importance is given by the USCIS to the job description stated on the H1B petition and other factors such as the employer controlling and supervising the employee's activities and evaluating job performance, esp. if it is a consulting position. Please consult with an immigration attorney for specific advice.
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