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. How Does the State Workforce Agency (SWA) Determine the Prevailing Wage
To accomplish this, the SWA first determines if the job opportunity is covered by the active union agreement. If so, that is the prevailing wage. If that is not the case, the SWA fist determines if the job falls under current wage determinations made for the Service Contract Act (SCA) and the Davis Bacon Act (DBA). If the job opportunity is covered by the current determination, that is the prevailing wage.
If the job opportunity does not fit under any of the above, the SWA then turns to the Occupational Employment Statistics survey (OES). The OES is a national survey managed by the Bureau of Labor Statistics (BLS), which provides a large enough sample to allow BLS to determine a prevailing wage for every occupation in every area of intended employment in the United States.
An employer may also choose to provide a published survey, which includes a mean wage for the occupation to be filled in the area of intended employment of the job opportunity. The SWA then must review the employer provided survey to determine if the survey meets published standards. If so, the employer may use that wage as the prevailing wage in that instance.
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.
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