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H1B Visa Attorney – Prevailing Wages and Acceptable Source Surveys for LCA’s

Our office is busy with completing all our H1B petitions to be ready for April 1 deadline. This is a recent update regarding prevailing wage issues. Department of Labor issued revised Frequently Asked Questions (FAQ) for the H-1B 2012 filing season. I wanted to cover the Prevailing Wage topic.

Many of our readers will undergo labor certification in the process of obtaining permanent residence. Those who have been through the process know that documenting the prevailing wage is among the many challenges of a labor certification.

The prevailing wage is the average wage paid to similarly employed workers in a particular occupation in the geographic area of intended employment. In accordance with procedures issued in 1998, in most cases the State Employment Workforce Agencies (SWAs) are required to determine the prevailing wage rate based on wage surveys conducted by the Bureau of Labor and Statistics under the occupational employment statistics (OES) program. There are exceptions to this for certain positions that are covered under the Davis-Bacon Act (DBA) or other Service Contract Act (SCA), or where there is a negotiated collective bargaining agreement.

Where can an employer obtain a list of acceptable prevailing wage source surveys for Section G of the ETA Form 9035/9035E?
The OFLC does not maintain a list of acceptable wage source survey instruments for purposes of processing the ETA Form 9035/9035E. An employer preparing an LCA must select a wage source that complies with the Department’s regulations at 20 CFR 655.731 and identify that wage source on the ETA Form 9035/9035E.

When completing the application, the survey entry in Item G.11b must contain the name of the survey company and the exact title of the survey used. The survey title entered must be for the most recent applicable survey published.

Each employer must ensure that the wage source it relies on meets the regulatory requirements. For example, a wage source entry that was acceptable in a previous year may no longer reflect the current title of the latest wage survey publication or may no longer meet the requirements under 20 CFR 655.731.

Wage survey source entries in Item G.11b must correspond to survey instruments available in the year entered in Item G.11a; the OFLC will deny an LCA where the wage survey source entry in Item G.11b does not match the year in Item G.11a. Moreover, wage survey source entries in Item G.11b must reflect the most recent publication of the specific survey at the time of LCA submission. The OFLC will deny an LCA with an otherwise acceptable wage survey source entry where, in Items G.11a and G.11b, the LCA identifies a version of the survey other than the most recent publication.

Since the prevailing wage determinations provided by the OES do not necessarily reflect “real world” wages, employers may opt to obtain independent or private wage surveys. Before attempting to rely on such a survey, it is necessary to evaluate whether the survey meets the above regulatory requirements. If the requirements are not met by the independent survey, the SWA will utilize the OES wage data to determine the prevailing wage for LC purposes. Feel free to email us your questions, and good luck to all the H1B filers.