The Prevailing Wage
For H-1B Application, and
1. The Prevailing Wage Determination
For H-1B application, the prevailing wage is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. USCIS requires that the hiring of a H-1B foreign worker will not adversely affect the wages and working conditions of U.S. workers working in the occupation in the area of intended employment. One of the major ways of ensuring this is by the regulatory requirement that the wages offered on Labor Certification Applications must be the prevailing wage rate, for the occupational classification in the area of employment.
The requirement to pay prevailing wages as a minimum is true of virtually all employment based visa programs - permanent and temporary. However, in certain programs, such as H-1B (temporary specialty occupations), the employer is required to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.
Prior to submitting an H-1B petition, the employer will need to obtain a prevailing wage determination. In all other instances, the state will evaluate upon receipt of the application whether the employer's offered wage meets the prevailing wage.
2. The Prevailing Wage Determination
For H-1B and PERM Labor Certification, the U.S. Immigration and Nationality Act requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed.
To comply with the law, the U.S. Department of Labor's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment. The prevailing wage rate is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.
Employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs. The requirement to pay prevailing wages as a minimum is true of most employment-based visa programs involving the U.S. Department of Labor.
In addition, the H-1B and PERM Labor Certification programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher. The U.S. Department of Labor's Bureau of Labor Statistics has provided wage data collected under the Occupational Employment Statistics (OES) program for use in the foreign labor certification process.
For the H-1B programs, employers have the option of using one of three wage sources to obtain the prevailing wage:
1) Requesting a prevailing wage from the NPWC (Form ETA-9141);
2) Using a survey conducted by an independent authoritative source; or
3) Using another legitimate source of information.
By obtaining the prevailing wage from the NPWC, employers are given "safe-harbor status." This means, if the employer's wage compliance is investigated for any reason, the U.S. Department of Labor's Wage and Hour Division will not challenge the validity of the prevailing wage, so long as it was applied properly, i.e., correct geographic area, occupation, and skill level.
3. The Specialty Occupation for H-1B Applicant
The H-1B applicant must be coming to America to fill a ‘specialty occupation', that is an occupation that requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States.
'Specialty occupation' is defined as 'an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation in the United States.' Under USCIS regulations, one or more of the following criteria must be met before a job can be considered a specialty occupation:
A bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position;
The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.
A U.S. bachelor's or higher degree (or its foreign equivalent) should be held in the specific specialty or a related field. Furthermore, a general arts degree or a generic business administration degree without further specialization or experience may be heavily scrutinized by the USCIS.
To qualify for the Specialty Occupation, a H-1B visa applicant should have the following:
1) Completion of a U.S. bachelor's or higher degree (or its foreign equivalent) in the specific specialty or a related field; or
2) Education, training, or experience in the specialty occupation equivalent to the completion of such degree; or
3) Full state licensure, if required for practice in the specialty field. For example: many pharmacists and all nurses are required to have a state license to practice.
4. The College Degree Requirement and the Work Experience in Lieu of Education
The type and level of degree required for the specialty occupation is dependent on the particular specialty occupation. Some positions may require an advanced degree as a minimum entry requirement. For other occupations, a bachelor's degree will suffice. If the applicant's education has not been completed in the United States, a foreign degree evaluation should be completed to determine whether the foreign degree is equivalent to a U.S. degree. These evaluations should be completed by accredited agencies and they can be found quite easily on the Internet.
Often times, there may be an assortment of related disciplines acceptable for entry into a given specialty. For example, a Computer Systems Analyst position may require a degree in computer science, engineering, math, or a related field.
An H-1B applicant may substitute prior work experience in a specialty occupation for part of, or in some instances, the entirety of the requisite education. However, work experience alone will not wholly substitute for a Master's degree or higher. This experience must be in 'progressively responsible positions relating to the specialty.'Evidence of qualifying experience can include 'letters from peers and special honors recognition, or authorship of textbooks.' An applicant can also evidence this work experience through an evaluation conducted by a college or accredited agency. USCIS may also determine equivalency through application of the 'three-for-one' rule, by which three years of specialized training and/or work experience may be substituted for each year of college-level education that the beneficiary lacks.
5. Filing an Amended H-1B Petition
If the employer asserts that there has been a significant change in the H1B worker's job role, the H1B petition should reflect those changes, typically with the filing of an amended H1B petition. On April 9, 2015, USCIS’ Administrative Appeal Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC (PDF), which held that employers must file amended H-1B petitions when a new Labor Condition Application for Nonimmigrant Workers (LCA) is required due to a change in the H-1B worker’s worksite location. Specifically, the decision stated:
When H-1B employees change their place of employment to a worksite location that requires employers to certify a new Labor Condition Application for Nonimmigrant Workers to the Department of Homeland Security. When there is a material change in the terms and conditions of employment, the petitioner must file an amended or new H−1B petition with the corresponding LCA. This precedent decision represents the USCIS position that employers are required to file an amended petition before placing an H-1B employee at a new worksite. USCIS will accept comments on the below draft guidance for a limited period of time.
You must file an amended H-1B petition if your H-1B employee changed or is going to change his or her place of employment to a worksite location outside of the metropolitan statistical area (MSA), or an “area of intended employment” covered by the existing approved H-1B petition, even if a new LCA is already certified and posted at the new location.
If your H-1B employee is moving to a new job location within the same MSA or area of intended employment a new LCA is not required. Therefore, you do not need to file an amended H-1B petition. However, you must still post the original LCA in the new work location within the same MSA or area of intended employment.
6. Does an Increase in Salary Need H1B Amendment and LCA to Be Filed?
Many employers perform salary reviews at the end of each year, providing raises to employees who have performed well. This is routine, and normally does not require any changes to the H1B petition. However, if the salary increase results in an employee earning well above the offered wage listed in the H1B petition and labor condition application (LCA) currently in place for the worker, the employer should examine whether the employee still actually is working in the same position and performing the same job duties as those described in the H1B petition.
If the individual is working in a higher or different position than what is listed in the H1B petition and underlying LCA, it may be necessary to obtain a new certified LCA and amend the H1B petition. This should be done at the time when material changes in the position occur. However, not all employers have rigid job categories and clear promotional levels. In fact, in some companies, job changes occur over time, in a somewhat informal manner. If this has happened with an H1B worker, salary may be a key indicator of that fact.
USCIS has stated that an increase of wage alone for the same job may not be a substantial change requiring an amended petition. You need to review of your H-1B petition and job description.
7. The Rule for the Third-Party Worksite Requirements of H1-B Workers
The Department of Homeland Security (DHS) has issued an interim final rule effective December 7, 2020, that revises the regulatory definition of and standards for for “worksite” and “third-party worksite”, for H-1B purposes.
1) Clarifies how U.S. Citizenship and Immigration Services (USCIS) will determine whether there is an “employer-employee relationship” between the petitioner and the beneficiary;
2) Requires corroborating evidence of work in a specialty occupation;
3) Limits the validity period for third-party placement petitions to a maximum of 1 year;
4) Provides a written explanation when the petition is approved with an earlier validity period end date than requested.
The rule requires that the petitioner establish, at the time of filing, that it has actual work in a specialty occupation available for the beneficiary as of the start date of the validity period as requested on the petition.
In addition, all H-1B petitions for beneficiaries who will be placed at a third-party worksite must submit evidence showing that the beneficiary will be employed in a specialty occupation, and that the petitioner will have an employer-employee relationship with the beneficiary.
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