Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first make a filing with the Department of Labor (DOL) and obtain a Labor Condition Application (LCA). 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. In addition, the employer must attest that it is offering, and will 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 in question; OR (2) the prevailing wage level for the occupational classification in the area of employment.
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[i]. 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.
The prevailing wage is 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[ii] should be used to determine the prevailing wage for the prevailing wage in connection with an employer’s job offer.
Although employers are not required to keep and maintain position descriptions, regulations 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.
The regulations governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour Division (WHD)[iii], 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 source is in accordance with the regulatory criteria, the Administrator may contact the Employment and Training Administration (ETA)[iv], a part of DOL, to get the prevailing wage.
Once 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 I-129 forms submitted to the United States and Citizenship Services (USCIS) for the approval of 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