When applying for the H1B visa, a determination that the U.S. government makes is whether employees will be paid fairly for their work. A salary at or above what is known as the prevailing wage, which is determined by the skill level of the employee and the geographic area where they will be working, is necessary for H1B approval.
In this guide, we’re going to discuss how a prevailing wage is determined, and the general process involved with it. If you have any questions, feel free to email me directly at Michael@AshooriLaw.com. I’m very responsive via email and I would be happy to help you.
- What is a prevailing wage, and how is it determined?
- Why does wage data matter?
- The significance of a suitable wage level
1. What is a prevailing wage, and how is it determined?
As discussed, a prevailing wage is a determination made that a salary is sufficient. But, prevailing wage determinations for H1B petitions are made on a case-by-case basis. The determination is made when filing the LCA (Labor Condition Application) for each employee. When doing this, the petitioner is asked to enter a prevailing wage for a position made by either the Department of Labor, the Occupational Employment Statistics program, or an independent, authoritative source. While there are multiple sources, one used commonly is the Foreign Labor Certification Data Center (https://www.flcdatacenter.com/).
A prevailing wage is determined from a source such as the FLC Data Center. With the right information, an individual can search for common wages paid to employees by geographic area and skill level. It is mostly a matter of having the right area code and occupational code. The FLC Data Center also separates wage information by the periods of time the data was collected.
Say that we want to look up wage results for Computer Programmers in the Los Angeles area. Using data from the Department of Labor, we find out that the Los Angeles BLS code (or Bureau of Labor Statistics code) is 31080. Next, we can either enter in the SOC code (or Standard Occupational code), also using data from the Department of Labor, or we can search for the occupation manually.
The FLC Data Center will now let us know the historical wage data for Computer Programmers in Los Angeles. If we’re looking at the data from July 2020 to the present, we see that the Level 1 wage is $65,499 a year.
There are multiple levels an employee can qualify for. However, if one is looking for the minimum salary an H1B employee can make, this data can help them make that decision. Level 1 wages are meant for entry-level employees. There are 4 wage levels which progress based on the employee’s skill and experience.
2. Why does wage data matter?
This guide is not meant to overcomplicate the explanation of what a minimum H1B wage should be. But, to know what goes into making these determinations, it’s useful to know why the data matters.
Let’s walk back to the Labor Condition Application. The LCA is mandatory for all H1B filings. So, it’s important the wage is suitable and that the LCA is not denied. Ultimately, the Department of Labor makes the determination of whether a wage is suitable for an H1B specialty occupation. That’s why using a source such as the FLC Data Center makes a difference in whether an LCA is approved or denied, as the aggregate data collected there provides a thorough assessment of the prevailing wage for a specialty occupation and the area in which it is in.
The Foreign Labor Application Gateway, or FLAG, is the website maintained by the Department of Labor where an employer, attorney. or authorized representative can file an LCA. Using the FLAG website, a prevailing wage determination for an H1B can also be requested directly from the Department of Labor. The DOL will consider things such as job duties, the skills required, and an area’s economic condition when making an assessment. Generally, though, an approved source can be used in the Labor Condition Application if the area and occupational code are known.
3. The significance of a suitable wage level
An H1B petition can encounter obstacles if the employer does not pledge to pay a beneficiary the wage level outlined in the Labor Condition Application. Proper filing of the LCA is generally critical for this reason. For instance, USCIS may argue that an employer who is paying an employee more than the typical wage level for an entry-level position may encounter scrutiny. This is because if the wage level rises to that of a Level 2, or “qualified employee”, the data on the LCA is inconsistent. It may lead to a request for evidence, or even denial of the petition.
In the event that one is looking to extend their H1B, and they have been given a raise, another LCA must be filed for them, as the new H-1B extension would also qualify as an amendment.
Making sure your wage meets an appropriate level, based on your experience and area, is essential for a successful H1B petition. We recommend that you seek the assistance of an experienced immigration attorney when dealing with this process.
If you have any questions or would like assistance with the H1B application process, myself and my team would be happy to assist. Please feel free to email me directly at Michael@AshooriLaw.com. I am very responsive via email and would be happy to help you.