LEGAL GUIDE
Written by attorney Carl Michael Shusterman | May 25, 2011

Prevailing Wages for H-1B Workers

The Government says to all employers of H-1B workers:

"Show Me the Money!"

One small local employer of H-1B workers was forced by the Labor Department to pay over $500,000 in back pay to several H-1B workers recently. How do you insure that this will not happen to you?

Before filing an H-1B petition, an employer must get the U.S. Department of Labor (DOL) to certify a labor condition application (LCA). The LCA shows that the H-1B worker is being paid a wage equal to or greater than the prevailing wage for similarly employed workers or the wage paid to the other similarly employed workers at that location, whichever is higher.

The prevailing wage for a unionized position is determined by the collective bargaining agreement.

For all non-union jobs, to identify the appropriate prevailing wage, an employer can either request a prevailing wage determination (PWD) from the DOL or it can make a good-faith effort to identify the appropriate prevailing wage from a published salary survey that meets the DOL's criteria. The advantage of getting a the wage directly from the goverment (i.e. a PWD) is that the employer is given "safe harbor" meaning that they can not be found later to have been underpaying the H-1B worker, whereas if an employer identifies a prevailing wage on its own, there is no "safe harbor" provided.

To request a PWD, an employer files a form ETA 9141 using the new ICERT online system administered by the DOL. It can take up to 30-60 days to receive the PWD from the DOL. Once a PWD has been issued by the DOL, the employer must use that prevailing wage on the LCA and the employee must be paid at least that amount (or as much as that paid to the other similarly employed workers at that location, whichever is higher). An employer may request the DOL to reconsider a particular PWD if it feels the wrong occupational title or wage level (see below) was chosen, but ultimatel, if they have requested it, the employer must use the DOL-determined prevailing wage for the LCA. Because of the additional time it takes and the possible ramifications of an erroneous PWD being issued, many employers choose to identify the prevailing wage using a salary survey that meets the DOL's criteria rather than requesting a PWD from the DOL.

The OES wage library-the database that the DOL uses to determine PWDs-is available online and many employers use it to identify appropriate prevailing wages for an LCA. Each occupational title listed in the OES wage library has 4 wage levels listed depending on the level of skill required to perform the job. Problems can arise when employers don't understand how to correctly identify the appropriate occupational title and/or wage level from the OES wage library.

Many modern job titles (web developer, IT consultant, etc.) are not listed in the OES online wage library, so an employer must choose an occupational title from the list of those included that matches the job based on the job duties for the position. An employer can use the key-word search function to find occupational titles that are close and then compare the job duties for the proposed position to those listed for the various occupational titles included in the OES wage library (computer programmer, computer systems analyst, etc.) to identify the most appropriate occupation from which to choose the wage.

A detailed explanation of the proper level of wage to use for the prevailing wage is available here. The process involves determining the industry standard minimum requirements for a particular job based on its Specific Vocational Preparation (SVP) level, and then comparing the employer's minimum requirements for the proposed position to determine how much, if any, they exceed the industry standard. For example, if a bachelor's degree is normally required for entry into an occupation, the prevailing wage for a job offer in that occupation which requires a master's degree would be the level II wage. If the employer requires a master's degree plus one year of experience for a job that normally only requires a bachelor's degree, the level III wage would be the appropriate prevailing wage. Where a master's degree is normally required for entry into the occupation, the prevailing wage for a job offer in that occupation that requires a master's degree would be a level I, unless there are other special requirements contained in the job offer or components thereof that require skills that are at level II.

As detailed above, the process of identifying a prevailing wage for an LCA can be complicated. Employers should utilize the services of a reputable Immigration Attorney who is has an in-depth familiarity with SVP levels and skill level calculations to help identify the appropriate prevailing wage for an LCA in order to ensure compliance with the DOL regulations.

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