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H-1B: Prevailing Wages and Alternative Wage Survey

Wages for H-1B workers:

Prevailing wages is the average wages paid to similar employees in a certain occupation. However, wages differ from geographic location. Employers are required by the U.S. Department of Labor (USDOL) to pay an H-1B worker equal to or more than the prevailing wage.

Employers have the ability to uncover the prevailing wage by placing a prevailing wage determination request to the State Workforce Agency. Prevailing wage determination requests are valid from the date issued until the end of the issued year. But, if it given within the last 90 days before the year ends, it is valid for only those 90 days.

Before the State Workforce Agency gives the final prevailing wage, an attorney can provide a preliminary prevailing wage by accessing the position, job requirements, and work setting. This initial determination will help the employer and attorney create the right job description and requirements.

Alternative Wage Survey:

An employer may also submit an alternative wage survey. The alternative wage survey must show proof that the employees in that survey have a job similar to the one being proposed to the foreign worker. The survey must also show that data was collected throughout industries from employers in the same occupation. Other requirements include publishing the survey 24 months before submission of the prevailing wage request and the information gathered must be based within 24 months of the date of publication. When an employer submits an alternative wage survey, the State Wage Agency will evaluate the survey to ensure that the survey meets regulation standards. If the survey meets the regulations, the State Wage Agency will determine the prevailing wage by using the information provided in the survey.

In most cases, an alternative prevailing wage is determined by calculating an arithmetic mean of wages of employees who are similarly employed. However, if the arithmetic mean is not available in the survey, a median wage is allowed. In the case of determining alternative prevailing wages, the employer is required to show methodology within the survey.

There is no regulated timeline of response to an employer’s prevailing wage request. There are, however, guidelines that encourage the State Workforce Agency to send responses within 14 days of receiving the prevailing wage determination request. In the case of the alternative wage survey, the State Workforce Agency should provide a response within 30 days.

Wage levels are determined by the employee’s experience and qualifications. The USDOL will search to find if the wage levels are applied universally in accordance with all H-1B employee qualifications and experience.

Failure to pay the proper wages will result in payment of back wages to each employee in question, as well as fines with a strong chance for the company to lose its privilege of being part of the H-1B visa program.

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