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ABC’s Of H-1Bs (This Is Part 2 Of An 8 Part Series). How Much Do Prospective H-1B Employers Need To Pay To H-1B Employees And Why The Federally Mandated Prevailing Wage Is So Important<!–END ARTICLE TITLE–>
</h3><h4><i>by <a href=”http://discuss.ilw.com/content.php?6760-Article-How-States-Cities-and-Universities-Can-Retain-Foreign-Entrepreneurs.-by-Matthew-La-Corte-and-Brandon-Fuller#bio”>
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Michael Phulwani, Ludka Zimovcak, and David Nachman
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<p>
Employers who seek to hire an
<a href=”https://visaserve.com/lawyer/H-1B-Visas_cp14934.htm”>
H-1B nonimmigrant
</a>
in a specialty occupation must first make a filing with the Department of
Labor (DOL) and obtain a
<a
href=”https://visaserve.com/lawyer/blog_category/PERM-(Labor-Certification)”
>
Labor Condition Application (LCA)
</a>
. 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. Additionally, the employer must attest that it is offering, and
will continue to 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
position in question; OR (2) the prevailing wage level for the occupational
classification in the intended area of employment.
</p>
<p>
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. 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.
</p>
<p>
The prevailing wage could be 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 should be used to determine the prevailing wage rate for the
prevailing wage in connection with an employer’s job offer.
</p>
<p>
Although employers are not required to keep and maintain position
descriptions, the regulations do 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.
</p>
<p>
The Federal regulations governing the H-1B nonimmigrant visa require the
Administrator, Wage and Hour Division (WHD), 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 wage source is in accordance
with the regulatory criteria, the Administrator may contact the Employment
and Training Administration (ETA), a part of DOL, to get the prevailing
wage.
</p>
<p>
Once the 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 Form I-129
submitted to the United States and Citizenship Services (USCIS) in
connection with the 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.
</p>
<p>
The nature of the job offer, the area of intended employment, and job
duties for workers that are similarly employed are the relevant factors
that are to be 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. The regulations define “similarly employed” as
substantially comparable jobs in the occupational category in the area of
intended employment. The required work and education and/or experience for
a job impact the determination of the prevailing wage level.
</p>
<p>
ETA provides guidance for determining the proper wage level for a position.
Level I wage rates are assigned to job 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 require limited exercise
of judgment. The guidance 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.
</p>
<p>
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. 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.
</p>
<p>
To better understand how the wage levels apply, consider an example of a
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. 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.
</p>
<p>
To summarize, an employer hiring an H-1B worker is required to pay the
higher of the actual wage or the prevailing wage. If paying the prevailing
wage, the wage must be 100% of the prevailing wage. Further, the
determination of the prevailing wage depends upon 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.
</p>
<p>
The employer is required to keep a copy of the documents used to determine
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.
</p>
<p>
In conclusion, a prospective H-1B employer should exercise caution in
offering a wage to prospective H-1B employee 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.
</p>
<p>
For more information about the H-1B nonimmigrant work visa process or to
consider H-1B nonimmigrant work visa options, the immigration and
nationality lawyers and attorneys at the Nachman Phulwani Zimovcak (NPZ)
Law Group, P.C. invite you to visit them on the web at www.visaserve.com or
to email them at info@visaserve.com or to call the firm at 201.670.0006
(x107).
</p>
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About The Author<br/>
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<p>
<a><b>David Nachman, Esq. </b></a>is one of the Managing Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C., a pre-eminent International Immigration and Nationality Law Firm dedicated to providing a wide array of business and family immigration law services for skilled U.S.-and Canada-bound workers. The Attorneys in our Law Firm assist clients with waivers, marriage cases, citizenship applications, I-130 sponsorship for family, etc.</p>
<p>
<a><b>Michael Phulwani, Esq. </b></a>is admitted to practice law in New York and India. He has been practicing law for about 40 years in the field of US Immigration and Nationality Laws. He has successfully handled many complex immigration matters with the Immigration and Naturalization Service and Consular Processing cases at American Consulates abroad and especially in India.</p>
<p>
<a><b>Ludka Zimovcak, Esq. </b></a>is a Managing Attorney at NPZ Law Group, PC. Mrs. Zimovcak’s passion for excellence in immigration law derives from her own family’s first-hand immigration experiences. She is fully licensed to practice as an Attorney in Slovakia and New York.</p>
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