how does lawyer select wage level for h1b

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:

Full Answer

What is the H1B wage level?

The H1B wage level (or also known as the prevailing wage) is the average wage earned by employees in a specific area. Each type of job has its own prevailing wage for a specific area.

How does Dol determine prevailing wage for H-1B employees?

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.

What happens if you pay the wrong H-1B wage?

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.

Can I get an H1B visa if I have a job?

For some types of jobs, you may be able to get an H1B visa if the wage level is only on 1. This will depend on whether there is a shortage of that specifically required skill in the area. You need to be sure that the H1B job you are applying for has a wage level that supports the grounds of your immigration attempt.

How is wage level decided for H1B?

H1B Wage Levels are defined by the US Department of Labor (DOL). It is based on the prevailing wages data collected under Occupational Employment Statistics(OES) Program by them based on a location, job title, experience, and a few other criteria.

How do you determine the correct prevailing wage level for PERM and H1B petitions?

How to find the correct prevailing wage level for your H-1B petition [2022]Select the Occupation.Select the Work location Zip Code.Enter the Employer's minimum requirements for the position.Try our prevailing wage tool now and let us know what you think!

What is Level 4 wage H1B?

H1B Wage Level 4 is the final level and corresponds to the 67th percentile of H1B workers. The level four H1B wage is reserved for competent workers who are experts in their field and typically comes with high-level management responsibilities.

What is wage level 2 in LCA?

H-1B Wage Level 2 (Qualified): Level two is for qualified workers with the education and experience needed to perform moderate tasks with limited judgment. The wages for this level are typically between $51k to $65k salary.

What is wage Level 3 in LCA?

Wage levelPercentile of surveyed wages by occupation & regionDescription of wage level234thQualified350thExperienced467thFully competentOtherN/AOther wage surveys, including privately financed surveys1 more row•May 4, 2020

What is the minimum wage level for H-1B?

The H-1B nonimmigrant, whether full-time or part-time, must actually receive hourly wages or an annual salary totaling at least $60,000 in the calendar year. The salary must be paid “cash in hand” and “free and clear.” It must also be paid when due.

What does level wage determination mean?

A comparison between the particulars of the employer's job offer to the requirements for similar (O*NET) occupations shall be used to determine the appropriate wage level.

Does H-1B wage level include bonus?

Under immigration law, the required wage must be paid to the H1B worker free and clear. Bonuses that are not guaranteed to the worker cannot be used to satisfy the wage requirements. The employer may not factor in the value of benefits offered to the worker, such as health insurance, to meet the wage requirements.

How are wage levels are set?

Minimum wage rates are determined by factors such as poverty threshold, prevailing wage rates as determined by the Labor Force Survey, and socio-economic indicators (i.e. inflation, employment figures, Gross Regional Domestic Product, among others), which insures better workers protection.

What is Level 1 and Level 2 in LCA?

The prevailing wage level is based on the employer's minimum requirements for the position. Bachelor Degree and 0-1 years of experience required should result in a Level 1 prevailing wage. Bachelor Degree and 2 years of experience should result in a Level 2 prevailing wage.

What are the wage levels?

Wage levels are divided by low pay and high pay. The incidence of low pay refers to the share of workers earning less than two-thirds of median earnings. The incidence of high pay refers to the share of workers earning more than one-and-a-half time median earnings.

What is the H1B wage requirement?

It is H1B employer’s responsibility and wage requirement to make sure the H1B worker is paid on par with the prevailing wage or minimum wage defined for the H1B job position similar to a US worker working in similar job. H1B workers cannot be working below the minimum wage for the position offered in that area. It is based on various factors related to the job position offered like experience, geographic location and education.

What is the H1B LCA?

The H1B wage levels are set so that H1 B workers are paid the prevailing wage that are based on education, experience and location, similar to US workers. The wage levels are filled as part of the H1B LCA as part of the Labor Condition Application Process.

What is the Department of Labor's prevailing wage policy?

Department of Labor (DOL) has official guidance on how the prevailing wage levels are set and what data is used for the same. Read Prevailing Wage Determination Policy Guidance for complete information on the process of setting the wage levels and other key information that is relevant for minimum wage.

When did the 4 wage levels start?

The concept of Four wage levels was introduced in 2004 under the “H1B Visa Reform Act of 2004”. That’s how the prevailing wage levels came into existence.

When were wage levels introduced?

Background of Wage Levels. The concept of Wage levels was first introduced in October 1997, where they introduced two skill levels, Level I for beginning level employees and Level II for fully competent employees.

Does USCIS look at H1B?

USCIS would look at the H1B application as a whole and as part of that they would ensure that H1B worker is paid as per the prevailing wage. If there is any discrepancy, USCIS can report the wage violation for the employer to DOL or ask the employer why not paid on par with others.

What is a level 1 job in DOL?

Level 1 positions are entry level, and typically include: Routine tasks. Limited use of judgement. Close supervision and monitoring by a manager.

What is prevailing wage?

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 ...

What are the job keywords for a level 4 supervisor?

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.

What is level 3 judgment?

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.

What is the H-1B reform act?

The implementation of the H-1B Reform Act and the publication of the PERM regulation necessitate the need to issue policy clarification and procedural guidance to the State Workforce Agencies. The guidance provides the step-by-step procedure for selecting the appropriate wage level for prevailing wage purposes.

What are employer requirements in a job offer that are at the upper range of the requirements and preparation generally required for performance

Employer requirements in a job offer that are at the upper range of the requirements and preparation generally required for performance in an occupation are indicators that a prevailing wage determination at a higher level should be considered .

What is the H1B wage?

The H1B petitioning employer is required to pay the higher of the prevailing wage or the actual wage, which is the amount that employer pays to its other employees with similar experience and qualifications for the job in question.

What is level 1 wage rate?

The guidance states that level 1 wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees should be performing basic tasks that only require a limited exercise of judgment. The employees should be closely supervised and their work should be checked for accuracy

How is wage level determined?

The wage level is determined by the petitioning employer’s minimum requirements for the position. The requirements include the minimum education necessary to competently perform the job, and the minimum amount of experience. Other factors are also considered, including any required special skills.

What are the factors that determine prevailing wage?

The relevant factors in determining a prevailing wage rate are the nature of the job offer, the area of intended employment, and job duties for workers that are similarly employed.

Can I fight wage level 1 RFE?

Can I fight the wage level 1 RFE? Yes! The USCIS memo does not prohibit the approval of H1B petitions filed requesting a level 1 wage. But, moving forward, we expect to see more employers opting to select wage level 2 or higher on many H1B petitions, if only to avoid the problems of wage level 1 RFEs.

Does an H1B employee work at an end client?

Even though an H1B employee works at an end-client site, the employer-employee relationship still must be established. That means that the H1B petitioning employer, rather than the end-client, should control the direction of the H1B employee’s work.

Can a computer programmer be an H1B?

Citizenship and Immigration Services (USCIS) released a memorandum dated March 31, 2017 that called into question whether a position classified as a “computer programmer” may qualify as an H1B position , especially when a level 1 wage is listed on the labor condition application (LCA). Based on the requests for evidence (RFEs) issued following the release of the memo, it has become clear that the USCIS is interpreting this memo broadly, calling into question the validity of a wide variety of H1B petitions that propose to pay level 1 wages. To that end, MurthyDotCom is providing answers to this set of frequently asked questions (FAQs) to help explain the issues generally being raised by the USCIS in these wage level 1 RFEs.

What is the salary required for H1B?

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.

What are the obstacles to filing an H1B petition?

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.

What is prevailing wage?

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/).