An employer seeking to employ H-1B nonimmigrants in a specialty occupation or as a fashion model of distinguished merit and ability shall state on Form ETA 9035 or 9035E that it will pay the H-1B nonimmigrant the required wage rate. For the purposes of this section, "H-1B" includes "E-3 and H-1B1" as well.
(a) Establishing the wage requirement. The first LCA requirement shall be satisfied when the employer signs Form ETA 9035 or 9035E attesting that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B nonimmigrant(s); that is, that the wage shall be the greater of the actual wage rate (as specified in paragraph (a)(1) of this section) or the prevailing wage (as specified in paragraph (a)(2) of this section). The wage requirement includes the employer's obligation to offer benefits and eligibility for benefits provided as compensation for services to H-1B nonimmigrants on the same basis, and in accordance with the same criteria, as the employer offers to U.S. workers.
(1)
The actual wage is the wage rate paid by the employer to all
other individuals with similar experience and qualifications for the specific
employment in question. In determining such wage level, the following factors
may be considered: Experience, qualifications, education, job responsibility
and function, specialized knowledge, and other legitimate business factors
"Legitimate business factors," for purposes of this section, means those that
it is reasonable to conclude are necessary because they conform to recognized
principles or can be demonstrated by accepted rules and standards. Where there
are other employees with substantially similar experience and qualifications in
the specific employment in question-i.e., they have
substantially the same duties and responsibilities as the H-1B nonimmigrant-the
actual wage shall be the amount paid to these other employees. Where no such
other employees exist at the place of employment, the actual wage shall be the
wage paid to the H-1B nonimmigrant by the employer. Where the employer's pay
system or scale provides for adjustments during the period of the LCA-e.g
cost of living increases or other periodic adjustments, or the employee moves
to a more advanced level in the same occupation-such adjustments shall be
provided to similarly employed H-1B nonimmigrants (unless the prevailing wage
is higher than the actual wage).
(2) The prevailing wage for the occupational
classification in the area of intended employment must be determined as of the
time of filing the application. The employer shall base the prevailing wage on
the best information available as of the time of filing the application. Except
as provided in this section, the employer is not required to use any specific
methodology to determine the prevailing wage and may utilize a wage obtained
from an OFLC NPC (OES), an independent authoritative source, or other
legitimate sources of wage data. One of the following sources shall be used to
establish the prevailing wage: (i) A
collective bargaining agreement which was negotiated at arms-length between a
union and the employer which contains a wage rate applicable to the
occupation;
(ii) If the job
opportunity is in an occupation which is not covered by paragraph (a)(2)(i) of
this section, the prevailing wage shall be the arithmetic mean of the wages of
workers similarly employed, except that the prevailing wage shall be the median
when provided by paragraphs (a)(2)(ii)(A), (b)(3)(iii)(B)(2)
and (b)(3)(iii)(C)(2) of this section. The prevailing wage
rate shall be based on the best information available. The following prevailing
wage sources may be used:(A)
OFLC
National Processing Center (NPC) determination. Prior to January 1
2010, the SWA having jurisdiction over the area of intended employment shall
continue to receive and process prevailing wage determination requests, but
shall do so in accordance with these regulatory provisions and Department
guidance. On or after January 1, 2010, the NPC shall receive and process
prevailing wage determination requests in accordance with these regulations and
with Department guidance. Upon receipt of a written request for a PWD on or
after January 1, 2010, the NPC will determine whether the occupation is covered
by a collective bargaining agreement which was negotiated at arm's length, and
if not, determine the arithmetic mean of wages of workers similarly employed in
the area of intended employment. The wage component of the Bureau of Labor
Statistics Occupational Employment Statistics survey shall be used to determine
the arithmetic mean, unless the employer provides an acceptable survey. The NPC
shall determine the wage in accordance with secs. 212(n) and 212(t) of the INA
If an acceptable employer-provided wage survey provides a median and does not
provide an arithmetic mean, the median shall be the prevailing wage applicable
to the employer's job opportunity. In making a PWD, the Chicago NPC will follow
20 CFR
656.40 and other administrative guidelines or
regulations issued by ETA. The Chicago NPC shall specify the validity period of
the PWD, which in no event shall be for less than 90 days or more than 1 year
from the date of the determination.(1) An
employer who chooses to utilize an NPC PWD shall file the labor condition
application within the validity period of the prevailing wage as specified in
the PWD. Any employer desiring review of an NPC PWD, including judicial review,
shall follow the appeal procedures at
20 CFR
656.41. Employers which challenge an NPC PWD
under 20 CFR
656.41 must obtain a ruling prior to filing
an LCA. In any challenge, the Department and the NPC shall not divulge any
employer wage data collected under the promise of confidentiality. Once an
employer obtains a PWD from the NPC and files an LCA supported by that PWD, the
employer is deemed to have accepted the PWD (as to the amount of the wage) and
thereafter may not contest the legitimacy of the PWD by filing an appeal with
the CO (see 20 CFR
656.41) or in an investigation or enforcement
action.
(2) If the employer is
unable to wait for the NPC to produce the requested prevailing wage for the
occupation in question, or for the CO and/or the BALCA to issue a decision, the
employer may rely on other legitimate sources of available wage information as
set forth in paragraphs (a)(2)(ii)(B) and (C) of this section. If the employer
later discovers, upon receipt of the PWD from the NPC, that the information
relied upon produced a wage below the final PWD and the employer was paying the
NPC-determined wage, no wage violation will be found if the employer
retroactively compensates the H-2B nonimmigrant(s) for the difference between
the wage paid and the prevailing wage, within 30 days of the employer's receipt
of the PWD.
(3) In all situations
where the employer obtains the PWD from the NPC, the Department will deem that
PWD as correct as to the amount of the wage. Nevertheless, the employer must
maintain a copy of the NPC PWD. A complaint alleging inaccuracy of an NPC PWD,
in such cases, will not be investigated.
(B)
An independent authoritative
source. The employer may use an independent authoritative wage source
in lieu of an NPC PWD. The independent authoritative source survey must meet
all the criteria set forth in paragraph (b)(3)(iii)(B) of this
section.
(C)
Another
legitimate source of wage information. The employer may rely on other
legitimate sources of wage data to obtain the prevailing wage. The other
legitimate source survey must meet all the criteria set forth in paragraph
(b)(3)(iii)(C) of this section. The employer will be required to demonstrate
the legitimacy of the wage in the event of an investigation.
(iii) For purposes of this
section, "similarly employed" means "having substantially comparable jobs in
the occupational classification in the area of intended employment," except
that if a representative sample of workers in the occupational category can not
be obtained in the area of intended employment, "similarly employed" means:
(A) Having jobs requiring a substantially
similar level of skills within the area of intended employment; or
(B) If there are no substantially comparable
jobs in the area of intended employment, having substantially comparable jobs
with employers outside of the area of intended employment.
(iv) A prevailing wage determination for LCA
purposes made pursuant to this section shall not permit an employer to pay a
wage lower than required under any other applicable Federal, state or local
law.
(v) Where a range of wages is
paid by the employer to individuals in an occupational classification or among
individuals with similar experience and qualifications for the specific
employment in question, a range is considered to meet the prevailing wage
requirement so long as the bottom of the wage range is at least the prevailing
wage rate.
(vi) The employer shall
enter the prevailing wage on the LCA in the form in which the employer will pay
the wage (e.g., an annual salary or an hourly rate), except that...
