H-1B visas are designed to fill temporary jobs to protect wages and working conditions for both local US and foreign workers. To ensure that hiring foreign workers doesn't have a negative impact on local ones, employers need to pay a minimum prevailing wage to H-1B workers.
Determining The Prevailing Wages For H-1B Position
Employers in the case of paying incorrect H-1B wages may be subject to penalties. The United States Citizen and Immigration Services (USCIS) and Department of Labor (DOL) identify penalties in case of noncompliance. To avoid any inconvenience, it is important to seek advice from an experienced attorney.
According to the H-1B petition process, employers must attest to minimum labor conditions such as wages to Labor Condition Application. The prevailing wage is the specific amount paid to similarly qualified workers.
An attorney can help employers identify the wages level using DOL's "Worksheet for Use in Determining OES Wage Level."
DOL determines the prevailing wages for H-1B based on the following factors:
- The occupational character
- The geographic area of the workplace
- The nature of the job as compared to O*NET-SOC at different levels of:
- Education
- Experience
- Special skills
- Supervision Level
- Duties for similarly qualified workers working in a specific area.
H-1b Prevailing Wage Levels
The information of average skills, knowledge, and education required for each job is provided in the O*Net database. The DOL compares these aspects to the data provided by employers and determines the prevailing wages of H-1B employees accordingly.
Starting from lower education and skills to higher ones, there are four basic wage levels in O*NET-SOC. The identification of an employee’s wage level starts from level 1. After matching the qualities with a significant level, they are checked for a higher one.
Level 1 Positions include
- Routine tasks
- Limited judgment use
- Manager's close supervision and monitoring
- In-depth instructions of tasks and the expected results
- Basic knowledge of the occupation
Level 2 Roles commonly include
- Good understanding and experience of the occupation
- Moderate complex tasks
- Judgment-based tasks
Level 3 Positions typically entail
- Deep understanding of the occupation and extensive experience
- Specific skills and knowledge
- Strong judgment to execute tasks effectively
- Supervisory duty
- Common job
- The keywords mostly used are lead, senior, head, or chief
Level 4 are Professionals and should have
- Extensive experience to plan and perform perfect judgment and evaluation
- Strong skills to select, modify and apply standard procedures
- Abilities to apply advanced techniques to solve unusual, complex problems
- Skills to operate technical guidance
- Management or supervision
The Takeaway
H-1B visas are designed to protect wages and working conditions for workers. Prevailing wages if paid incorrectly to H-1B employees may lead to penalties by USCIS and DOL. Employers in case of noncompliance may be liable for penalties or back wages.
Sometimes in severe cases, employers may not be able to hire H-1B workers for multiple years. To avoid such penalties, employers must consult their trusted attorneys. Attorney members can help employers to identify prevailing wages according to DOL’s wage levels.
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