By: Gladys Gervacio

Employers are required to pay H-1B workers a minimum prevailing wage to ensure that hiring foreign workers does not negatively impact local ones. Paying an incorrect H-1B wage can result in steep penalties from the United States Citizen and Immigration Services (USCIS) and Department of Labor (DOL), so it is important to seek the advice of an experienced attorney when determining how much to pay your prospective H-1B employee.

how to determine the prevailing wage of your h-1b position

H-1B visas are designed to fill temporary jobs in a specialty occupation. This visa program has safeguards to protect the wages and working conditions of both local US and foreign workers. As a part of the H-1B petition process, employers must complete a Labor Condition Application (LCA) that attests to minimum labor conditions, like wages.

The prevailing wage is the amount paid to most workers within a geographic area and occupation type. Employers must be able to prove that they can pay H-1B workers either prevailing wages or the actual wages they pay to similarly qualified workers, whichever is higher.

First, your attorney can help you determine the appropriate wage level by using the DOL’s  “Worksheet for Use in Determining OES Wage Level,” where you will describe in detail the job duties, education, experience and skills required for the position.

DOL will determine the prevailing wage for your prospective H-1B employee based on a few factors:

• The Occupational Information Network Standard Occupation Code (O*NET-SOC) occupation type that most closely matches the role
• Geographic area where the work will be performed
• The nature of the job’s duties, as they compare to O*NET-SOC, which may require different levels of:
• Education
• Experience
• Special skills
• Level of supervision
• The job duties for similarly employed workers in the same geographic area, or within the O*NET-SOC if there are none in the local area

Understanding h-1b prevailing wage levels

The O*NET database provides a background on the average knowledge, skills, education, and more needed as a minimum for each occupation type (O*NET-SOC) in the United States.

DOL will compare the overall experience, education, training, special skills, and supervisory duties in your position description with what is normally required in the O*NET-SOC. The process is complex, as DOL uses assigned job zones, Specific Vocation Preparation (SVP) ranges, and prevailing wage data for your position’s O*NET-SOC to determine an appropriate wage level for your H-1B employee.

Each O*NET-SOC has four wage levels of income in the online wage library, with 1 being the lowest (entry level) and 4 (fully competent) being the highest. The higher the wage level, the higher the seniority of the position and the education, experience, and skills required to perform the role.

DOL begins at a Level 1 prevailing wage, then adds levels for each additional education, experience, and skills requirement above what is listed in the O*NET-SOC.

Level 1 positions are entry level, and typically include:

• Routine tasks
• Limited use of judgement
• Close supervision and monitoring by a manager
• Detailed instructions on tasks required and the expected results
• Only a basic understanding of the occupation

It may be difficult to sponsor an H-1B visa for a Level 1 wage position, because USCIS may argue that the position is not a specialty occupation and could be readily filled by a local US worker. However, certain industries may still be able to sponsor Level 1 H-1B workers.

Level 2 positions typically have:

• Good understanding of the occupation (through experience or education)
• Moderately complex tasks
• Tasks that require the use of judgment

Level 3 roles commonly entail:

• Strong understanding of the occupation, through experience or education
• Specialized skills and knowledge required
• Use of judgement is required to effectively execute tasks
• Supervisory duties
• Common job keywords may include lead, senior, head, or chief

Level 4 professionals are fully competent, and should have:

• Enough experience in the occupation to plan and conduct work that requires judgement and independent evaluation
• The ability to select, modify, and apply standard procedures and techniques
• Skill in applying advanced techniques to solve unusual, complex problems
• The ability to operate with only technical guidance
• Management or supervisory duties

conclusion

The H-1B visa involves complicated regulatory and compliance requirements. Paying an incorrect wage to an H-1B employee can lead to investigations by USCIS and DOL. Employers may be liable for penalties, back wages, and in severe cases may not be eligible to use H-1B workers for multiple years. Work closely with a trusted Chugh, LLP attorney to ensure that you pay your H-1B worker a fair prevailing wage and avoid costly penalties.