Wage Compliance for H-1B and PERM Cases | The Immigration Brief (006)

Summary

In this episode of the Immigration Brief, Naveen and David Fulmer delve into the complexities of wage compliance in H-1B and PERM processes. They explore key concepts such as actual wages, prevailing wages, and wage determinations, emphasizing their importance for employers in sponsoring foreign workers. The discussion covers methods for calculating and documenting wages, as well as navigating discrepancies between H-1B and PERM wage determinations. The episode also touches on the implications of the wage-weighted H-1B lottery system and its potential impact on new graduates entering the workforce. A must-watch for employers and immigration professionals!

Takeaways

• 😀 H-1B and PERM processes require employers to determine and document the proper wage to ensure compliance with immigration laws.
• 😀 The 'required wage' is the higher of the actual wage paid to similar workers at the same location and the prevailing wage set by the Department of Labor (DOL).
• 😀 The actual wage refers to the salary paid to workers with similar qualifications and duties, factoring in experience, qualifications, and adjustments like cost of living, bonuses, and promotions.
• 😀 Employers can use resources like the Department of Labor's ONET site to determine the correct occupation code and wage level for a position.
• 😀 If the prevailing wage is not available or not suitable, employers can use alternative wage surveys from authoritative sources like BLS or private surveys, as long as they're published within the last 24 months.
• 😀 Collective bargaining agreements (CBA) and wage scales are the primary reference for determining actual wages if they exist for a position.
• 😀 For H-1B workers, employers are responsible for determining wages, but for PERM processes, the wage determination from the DOL is binding and must be used throughout the process.
• 😀 Wage discrepancies between H-1B and PERM processes can arise, particularly if the DOL assigns a different wage level or SOC code during the PERM process.
• 😀 Wage levels and classifications can change, especially when employees transition from H-1B to permanent residency, and employers must ensure compliance with prevailing wage determinations during extensions.
• 😀 The new proposed wage-weighted H-1B lottery system could make it harder for entry-level candidates to be selected, as those with higher wages would have an advantage in the lottery process.

Q & A

What is the first concept to understand when dealing with wages for H-1B workers?

The first concept is that the worker must be paid the required wage, which is the higher of the actual wage paid to other similarly employed workers or the prevailing wage, which is determined by wage determinations and listed on the Labor Condition Application (LCA).

What factors are considered when determining the 'actual wage' for H-1B workers?

The actual wage is based on the salary paid to employees at the same worksite who are similarly employed. This includes considering the employee's experience, qualifications, job duties, cost of living increases, bonuses, and promotions.

How can employers document and calculate the actual wage for an H-1B worker?

Employers can use a worksheet or chart provided by the Department of Labor to determine the appropriate occupation code, job requirements, and assign wage levels. Tools like the ONET website can help find the correct occupation code and associated job zone for a position.

What is the role of the Department of Labor's Occupational Employment Wage Statistics (OEWS) website in determining wages?

The OEWS website is a key resource for determining the prevailing wage for a job position. It provides data for employers to determine what the appropriate wage should be for a particular occupation and location. If the OEWS website is unavailable, employers can use alternative wage surveys from authoritative sources.

How does the availability of a collective bargaining agreement affect wage determination for H-1B workers?

If a position is subject to a collective bargaining agreement, the wage scale specified in that agreement becomes the primary reference for determining the actual wage. If no agreement exists, the employer may rely on prevailing wage determinations or other authoritative wage surveys.

What challenges arise when the prevailing wage for a PERM process differs from the wage for an existing H-1B worker?

If the prevailing wage determination for a PERM application is different from the wage used for the H-1B, the employer must adjust the wage to meet the PERM wage requirement, even if it differs from the actual wage the worker has been earning. This can lead to discrepancies between what the employee has been paid on the H-1B versus what is required under the PERM process.

What is the impact of wage level discrepancies between the H-1B and PERM processes?

Discrepancies between the H-1B and PERM wage levels can create challenges for employers. The wage set during the PERM process is binding for permanent residency, but the employee may be on an H-1B visa for several years before receiving a green card. Employers may need to adjust wages based on updated prevailing wage determinations or negotiate with the Department of Labor if discrepancies arise.

How can geographical differences affect wage determinations for H-1B workers?

Geographical differences can significantly impact wage levels, as the prevailing wage in one area may be much higher or lower than in another. This is particularly relevant if an employee moves to a new location or works remotely, as the wage adjustment must align with the new geographic area's prevailing wage.

What is the purpose of the proposed wage-weighted H-1B lottery system?

The wage-weighted H-1B lottery system aims to give priority to higher-wage positions in the lottery process. Workers with higher wages (e.g., those in wage level 4 positions) would have multiple chances in the lottery, whereas lower-wage positions would have fewer chances.

How might the wage-weighted H-1B lottery system impact new graduates entering the workforce?

The wage-weighted lottery could disadvantage new graduates entering at entry-level positions with lower wages. They would have fewer chances of being selected in the lottery, whereas individuals with advanced degrees or higher-paying positions would have a better chance.