US consulates is reportedly denying H-1B petitions for improper wage level selection

Recently, US Consulates are reportedly increasing their scrutiny of H-1B visa applications with respect to the wage rates paid to H-1B workers. Before a H-1B worker may apply for a H-1B visa, his or her US employer obtain a certified labour condition application (LCA) from the Department of Labor before filing a petition with USCIS. The certified LCA lists the wage rate that the employer promises to pay the H-1B worker in the United States. This wage rate is based on the wage level selected by the US employer on the LCA, and is based on the complexity of the job duties and the amount of education and experience that is required to perform those duties. The Department of Labor issued guidance in 2009 that defines each of the four wage levels that US employers may select.

The four wage levels are based on the level of experience the H-1B worker has and the complexities of the job duties for the H-1B worker. For instance, the first level is the “entry” level position concerns those employees who perform routine tasks that require limited, if any, exercise of judgement. The tasks provide experience and familiarity with the employer’s methods, practices and programs. These employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and expected results. Their work is closely monitored and reviewed for accuracy.

On the other end of the wage level spectrum is the Level 4 (Fully Competent) H-1B worker. These workers are for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgement and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgement and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

Now it appears that the government is concerned that some US employers may be selecting Level 1 wage rates on the LCA for positions that are not entry-level roles. US employers must be careful when completing the LCA and ensure that the proper wage level is selected. Failure to select the proper wage level will likely result in the denial of a H-1B worker’s visa application at the US Consulate. It will also likely result in revocation of the H-1B petition. If there is a pattern of selecting the improper wage level by the US employer when completing the LCA, it may result in the employer being fined or banned from participating in the H-1B program. These are very serious consequences for US employers who routinely employ H-1B employees as part of its workforce, therefore compliance on this matter is very important when it comes to applying at the US Consulate. Our office is skilled at determining the proper wage level for a US employer’s H-1B worker and can guide a company on what the proper wage level should be submitted with the LCA so that the case is approved at the US Consulates.