H-1B Series: The Labor Condition Application - Part 3
More on Determining the "Prevailing Wage"
"[A] prevailing wage survey for the occupation in the area of intended employment published by an independent authoritative source shall mean a survey of wages published in a book, newspaper, periodical, loose-leaf service, newsletter, or other similar medium, within the 24-month period immediately preceding the filing of the employer's application. Such survey shall:These criteria are similar to, but perhaps not quite as stringent as, the seven criteria for SESA acceptance of a private survey published in G.A.L. 2-98 and G.A.L. 1-00.
In practice, a majority of employers do not go through the SESA determination process, and use the "independent authoritative source" approach instead. The SESA process can be exceedingly time-consuming, and lead to complicated discussions with the SESA if it makes a determination the employer wishes to dispute, causing further delay. Using "independent authoritative source" data avoids those problems, and may in fact provide the best reasonable source when the OES data appear to be unfair or unrealistic, as in the case of the mid-level employees described above. However, going forward without a SESA determination deprives the employer of a "safe harbor" from government questioning later due to the failure of the relevant agency to review and specifically approve a prevailing wage for the position.
The "independent authoritative source" approach requires an employer to be very careful in drafting an appropriate job description which (1) accurately reflects the level of skill and experience required for the position and (2) relies only on independent data which it has determined upon good-faith review to comport with the criteria above for the position. The employer must be confident that its choice of data is correct, and be prepared to demonstrate that fact in the event of an audit by DOL. In deciding which approach to take, the employer should carefully weigh the respective risks and benefits.
Three strategies have become common for employers in the "independent authoritative source" approach. First, the employer may furnish the same information it would submit to the SESA for a prevailing wage determination to a private consultant or expert firm that specializes in wage and salary compensation surveys or analysis. Typically, such firms maintain extensive libraries of published wage surveys, and may create and publish such surveys themselves. For a fee they will review the employer's job description, conduct research to find an appropriate match in a published survey, and issue a report to the employer. The report will state the prevailing wage the firm has determined for the job and the basis for the finding, and identify and describe the published survey relied upon. This may be the "safest" of the "independent authoritative source" strategies, because if there is any question later over the stated wage, the employer may establish that it ordered an independent review from the outside firm, and call on the firm to defend the basis for its finding.
Second, the employer may subscribe to or have other access to published wage surveys on its own, and wish to make the determination itself as to an appropriate wage to cite. This avoids the time necessary for the SESA determination and the expense of an expert report. The employer should only proceed on this basis if it is confident in the good-faith correctness of the data choice it has made, and is prepared to defend the choice in any inquiry by DOL.
Third, the employer may conduct a search in the DOL's Online Wage Library ("OWL") and rely on the appropriate OES or SCA wage reported there as an "independent authoritative source" for the prevailing wage it enters on the LCA. This is most useful where the offered salary exceeds the reported Level II wage in the OES database or highest reported SCA wage. As long as the choice of occupational code is correct, it is unlikely DOL would question whether the prevailing wage is met where the employer expressly submits to the highest wage DOL reports for the occupation in its own system. This approach is also appropriate for truly entry-level, closely supervised positions that the employer in good faith believes meet the DOL's Level I criteria." As described in the previous article, the On-line Wage Library is available at http://edc.dws.state.ut.us/owl.asp.
On-line OES data should not be used for positions that do not meet the Level II wage but lie in a middle range of responsibility, skill, and experience requirements, or positions below the Level II wage for which the employer states an advanced degree requirement (except for the positions normally requiring an advanced degree at entry level, as discussed before). For the reasons discussed above, the OES is inappropriate for such positions, and the employer should use another source. If the employer enters Level I data on an LCA for such a position, it will be questioned later for using a prevailing wage for the position that was inappropriately low.
Using "Another Legitimate Source of Wage Information"
Finally, the employer may rely on "other legitimate sources of wage data to obtain the prevailing wage." An "other legitimate source survey" must be one which:
"(1) Reflects the weighted average wage paid to workers similarly employed in the area of intended employment;The main distinction between this and the "independent authoritative source survey" is that an "other legitimate source survey" allows the employer to use a nonpublished, private survey which may be conducted by the employer itself or by a survey firm acting on its behalf. The survey must still use established, objective criteria for a legitimate, statistically sound survey.
In practice, it will be time-consuming, expensive, and complicated for the employer to procure a survey of this type on its own. Further, such a survey will be subject to the highest potential level of scrutiny from DOL. The regulations specifically warn that "[t]he employer will be required to demonstrate the legitimacy of the wage in the event of an investigation." For a fee, survey firms-often the same firms that provide expert "independent authoritative source" reports will conduct private surveys for this purpose under contract to an employer. Still, employers are advised to conduct thorough research and determine that all possibilities for use of a published "independent authoritative source" survey have been exhausted before resorting to this option.
If the employer elects to invest in a private survey with an outside firm, it may then wish to submit the survey to the SESA and seek to have it accepted under the criteria of G.A.L. 2-100. If the survey is accepted the employer will then have the "safe harbor" protection of a SESA determination.
Finally, the employer must evidence its compliance with the "required wage" obligation of the LCA by documenting how it established both the "actual wage," i.e., how the wage set for the H-1B nonimmigrant relates to the wages of other employees with similar experience and qualifications for the specific employment in that location, and the "prevailing wage." It must update the actual wage documentation at the time of any wage adjustments. For the prevailing wage, it must retain the SESA determination or union contract, "independent authoritative source" or "other legitimate source" survey, and any underlying supporting documentation." Finally, the employer must keep and make available to the DOL payroll and benefits records of all employees in the job in question at the location in the event of an actual inquiry.
About The Author
George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.
This article is the fifteenth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.