Determining the “Required Wage” for H-1B, H-1B1, E-3 and PERM Purposes
Participation in many employment-based visa programs requires U.S. employers to comply with certain wage obligations. The 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 who are similarly employed. To comply with the law, the U.S. Department of Labor’s (DOL) regulations require that the wages offered to a foreign worker must meet 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. In addition, the H-1B, H-1B1, and E-3 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. (This additional requirement is not applicable in the PERM program.)
The below information is meant to provide general information to assist you in determining if your company’s offered wage will comply with these employment-based visa programs. Your attorney, however, will conduct a detailed analysis of the job opportunity, worksite location and other factors to determine if the appropriate wage is being paid or offered.
What is the employer’s actual wage?
The actual wage is the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B, H-1B1 or E-3 nonimmigrant’s experience and qualifications for the specific employment in question at the place of employment (i.e. “similarly-employed workers”). The actual wage established by the employer is not an average of the wage rates paid to all workers employed in the occupation. If there are no similarly employed workers, the actual wage is just the wage paid to the foreign worker.
What is the prevailing wage?
The prevailing wage is the wage rate set for the occupational classification in the geographical area of employment by:
1. A union contract which contains a wage rate applicable to the occupation; or
2. For an occupation not covered by a union contract, the weighted average of wages paid to similarly employed workers (i.e., workers having substantially comparable jobs in the occupational classification) in the geographic area of employment.
Where to find prevailing wage information?
Prevailing wage data is published by the U.S. government by state and county at the Department of Labor’s (DOL) Foreign Labor Certification Data Center Online Wage Library (OFLC) here. To locate prevailing wage data for a specific occupation, click on “FLC Wage Search Wizard,” select the state where the H-1B/H-1B1/E-3 or PERM worker will be based, select the specific county that covers their area of employment and then select their occupation (or closest match) from the pulldown list. If the worker will work at more than one worksite, the employer must pay the highest prevailing wage from the worksites.
Four wage levels will be displayed. A description of which wage level is applicable can be reviewed by reading the Skill Level Explanation. In general, a level 1 wage is an entry-level wage applicable to beginning level employees “who have only a basic understanding of the occupation.” A level 2 wage is for “qualified employees who have attained, either through education or experience, a good understanding of the occupation.” A level 3 wage is for experienced employees “who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge.” A level 4 wage is for fully competent employees “who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation selection, modification, and application of standard procedures and techniques.”
For H-1B, H-1B1 and E-3 petitions, your attorney will review the currently published prevailing wage data to determine the appropriate occupational classification and wage level to be used on the requisite Labor Condition Application (Form ETA 9035, “LCA”). For PERM applications, your attorney will submit information regarding the job duties and requirements to DOL on Form ETA 9141, Application for Prevailing Wage Determination, to confirm that the offered wage will meet the required wage. DOL uses the same OFLC four-level wage data that is used for the H-1B, H-1B1 and E-3 programs. Our office refers to the OFLC wage data in counseling clients regarding the offered PERM wage.
OFLC wage data is updated each year on July 1.
Please contact your attorney at McCown & Evans if you would like further details.