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How to Establish a Prevailing Wage for H-1B Visas

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  • How to Establish a Prevailing Wage for H-1B Visas

H-1B visas are available to companies for specialty occupation positions. This visa’s regulations protect the wages of both US and foreign workers. To do this, employers must pay the Beneficiary of an H-1B visa the prevailing wage for the geographic area and occupation type. DOL will determine the prevailing wage for your prospective H-1B employee based on a few factors.

A quick way to determine if a position meets the prevailing wage is through the Foreign Labor Certification Data Center Online Wage Library at https://www.flcdatacenter.com/.

  • Click the FLC Wage Search Wizard
  • Select the state the job will be performed. For example, if you select California, you will be able to select the specific county where the position will be formed. For example, choose Santa Clara County for Silicon Valley jobs in San Jose or Sunnyvale.
  • You can select the job by either typing in a keyword like “Software,” and it will provide a list of SOC codes and position name options, including the following:

15-1133.00 Software Developers, Systems Software

Research, design, develop, and test operating systems-level software, compilers, and network distribution software for medical, industrial, military, communications, aerospace, business, scientific, and general computing applications. Set operational specifications and formulate and analyze software requirements. May design embedded systems software. Apply principles and techniques of computer science, engineering, and mathematical analysis.

View Wages for OES/SOC 15-1133: Software Developers, Systems Software

15-1132.00 Software Developers, Application Developers 

Create, and modify general computer applications software or specialized utility programs. Analyze user needs and develop software solutions. Design software or customize the software for client use to optimize operational efficiency. May analyze and design databases within an application area, working individually or coordinating database development as part of a team. May supervise computer programmers.

View Wages for OES/SOC 15-1132: Software Developers, Application Developers 

15-1199.01 Software Quality Assurance Engineers and Testers

Develop and execute software test plans to identify software problems and their causes. View Wages for OES/SOC 15-1199: Computer Occupations, All Other 15-1131.00 Computer Programmers create, modify, and test the code, forms, and script to run computer applications. Work from specifications drawn up by software developers or other individuals. May assist software developers by analyzing user needs and designing software solutions. May develop and write computer programs to store, locate, and retrieve specific documents, data, and information.

View Wages for OES/SOC 15-1131: Computer Programmers

  • If you want a software developer wage, you will use 15-1132, click the arrow back to the previous page and select 15-1132 from the list of occupations in the bottom box.
  • This will take you to a page stating the following relevant information:

Area Title: San Jose-Sunnyvale-Santa Clara, CA

OES/SOC Code:15-1132

OES/SOC Title: Software Developers, Applications

Level 1 Wage:$50.14 hour - $104,291 year

Level 2 Wage:$62.93 hour - $130,894 year

Level 3 Wage:$75.71 hour - $157,477 year

Level 4 Wage:$88.50 hour - $184,080 year

This page means the lowest wage paid for a software developer in Silicon Valley is $104,291. But there are a few things to understand before you select this position and jot it down on the I-129. The Department of Labor (DOL) memo entitled, “Employment and Training Administration, Prevailing Wage Determination Policy Guidance, Non-agricultural Immigration Programs, Revised November 2009, provides guidance on what the wage levels mean and how DOL determines them.

Level I (entry) wage rates are assigned to job offers for beginning-level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, the exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher-level work for training and developmental 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. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

USCIS began questioning Level 1 wages in 2017 and denied many cases on the issue. Some believe you can not obtain an H-1B visa for a Level 1 or entry-level position that is not accurate. One example is for positions under the supervision of a senior person in the position. This job can be entry-level if it requires the theoretical knowledge from its specific degree, as a Software Developer with a Computer Science or related degree. Still, the position does not require discretionary decision-making as the Senior Software Developer addresses that.

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. An indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones.

Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills, or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees at the higher ranges indicated in the O*NET Job Zones would suggest that a Level III wage should be considered. Frequently, keywords in the job title indicate that an employer’s job offer is for an experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior programmer), ‘head’ (head nurse), ‘chief’ (crew chief), or ‘journeyman’ (journeyman plumber) would be indicators that a Level III wage should be considered. While it is rare to see it enforced, Petitioners need to be careful not to allocate a title like Senior of Lead in front of a position paying below the level 3 tier.

Level IV (fully competent) wage rates are assigned to job offers for qualified employees who have sufficient experience in the occupation to plan and conduct work requiring judgment 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 to apply sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities. Level four wages can be beneficial when trying to obtain an H-1B for a position that is not meeting the specialty occupation standards under the OOH. 

Level four can be coupled with an argument that the particular duties of the job exceed the standards of the typical position. This can meet the fourth criterion of the H-1B specialty occupation regulation 8 CFR 214.2 (h)(4)(iii)(A), which states, “The natures of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.”

Employers should understand that paying an incorrect wage to an H-1B employee can lead to investigations by USCIS and DOL. Employers may be liable for penalties, back wages, and in severe cases, may not be eligible to use H-1B workers for multiple years.

Will H-1B visas be wage based in 2022?

The H-1B wage-based rule has been delayed until November 14, 2022, so it will not be an issue for the 2022 H-1B cap season, also called the Fiscal Year 2023. The rule was set to effect in May 2021 and was delayed by 18 months. The delay follows an earlier postponement of the rule from March 15. Employers will remain subject to the DOLS’s current prevailing wage rules, levels, and rates until January 1st, 2023, the scheduled start of the transition period for adjustments to prevailing wage levels.