News India Times

17 News India Times January 7, 2022 ABC’s OF H-1Bs (THIS IS PART 2 OF AN 8 PART SERIES) NPZ Law Group, PC Tel: 201-670-0006 x 107 Toll Free: 866-599-3625 www.visaserve.com Immigration H OW MUCH DO PROSPEC- TIVE H-1B EMPLOYERS NEED TO PAY TO H-1B EMPLOYEES AND WHY THE FEDERALLY MAN- DATED PREVAILINGWAGE IS SO IM- PORTANT Employers who seek to hire an H-1B non- immigrant in a specialty occupation must first make a filing with the Department of Labor (DOL) and obtain a Labor Condi- tion Application (LCA). The LCA, among other things, must specify the number of workers sought, the occupational clas- sification in which the H-1B will be em- ployed, and the wage rate and conditions under which the proposed H-1B nonim- migrant will be employed. Additionally, the employer must attest that it is offer- ing, and will continue to offer, during the period of H-1B employment, the greater of: (1) the actual wage level paid by the em- ployer to all other indi- viduals with similar expe- rience and qualifications for the specific employment position in question; OR (2) the prevailing wage level for the occupa- tional classification in the intended area of employment. If required to pay the prevailing wage, the wage must be 100% of the prevailing wage. The prevailing wage is determined for the occupational classification in the area of intended employment and must be determined as of the time of the filing of the LCA. The regulations require that the prevailing wage be based upon the best information available. An employer that fails to pay wages as required is li- able for back wages equal to the differ- ence between the amount that should have been paid and the amount that was actually paid. The prevailing wage could be determined by a Collective Bargaining Agreement (CBA) if one exists that pertains to the oc- cupation at the place of intended employ- ment. If the job offer is for an occupation not covered by a CBA and the employer does not choose to provide a survey or re- quest the use of a current wage determi- nation in the area, the wage component of the Bureau of Labor Statistics (BLS), Oc- cupational Employment Statistics (OES) survey should be used to determine the prevailing wage rate for the prevailing wage in connection with an employer’s job offer. Although employers are not required to keep and maintain position descriptions, the regulations do require an employer to keep and maintain a copy of the docu- mentation the employer used to establish the ‘prevailing wage’ for the occupa- tion for which the H-1B nonimmigrant is sought or the underlying individual wage data relied upon to determine the prevailing wage. This information may have to be made available to the public (if requested) or it may have to be made available to the DOL upon request or in connection with an enforcement action. The Federal regulations governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour Division (WHD), to determine whether an em- ployer has the proper documentation to support its wage attestation. Where the documentation is nonexistent or insuf- ficient to determine the prevailing wage, or where the employer has been unable to demonstrate that the prevailing wage determined by an alternate wage source is in accordance with the regulatory cri- teria, the Administrator may contact the Employment and Training Administra- tion (ETA), a part of DOL, to get the pre- vailing wage. OncetheETAprovidestheprevailingwage, the Administrator is bound to use this de- termination as the basis for determining violations and for computing back wages, if such wag- es are found to be owed by an H-1B employer. It is important to highlight that the regulation is permissive, and the ETA’s determination is merely an option that the Administra- tor can use in its investigation(s). This op- tion is rarely used by Administrators dur- ing investigations. If the employer fails to support, through proper documen- tation, how it arrived at the prevailing wage level, the Administrator can use the employer’s Letter of Support and Form I-129 submitted to the United States and Citizenship Services (USCIS) in connec- tion with the H-1B petition to determine whether the employee was appropriately classified at the specific wage level. Thus, the alternative of not keeping documents used in the determination of appropriate wage level is to maintain the compatibil- ity between the LCA and H-1B petition. The nature of the job offer, the area of in- tended employment, and job duties for workers that are similarly employed are the relevant factors that are to be used in determining a prevailing wage rate. In determining the nature of the job offer, the first thing to consider is the require- ments of the employer’s job offer. “Area of intended employment” means the area within normal commuting distance of the place (address) of intended employment. The regulations define “similarly em- ployed” as substantially comparable jobs in the occupational category in the area of intended employment. The required work and education and/or experience for a job impact the determination of the prevailing wage level. To be conntinued... By David H. Nachman, Esq Michael Phulwani David Nachman Ludka Zimovcak Snehal Batra In Memoriam To advertise Call: 212-675-7515 epaper.newsindiatimes.com