The Department of Labour is increasing its scrutiny of wage levels listed on H-1B petitions. The reason for this increased scrutiny is because the majority of H-1B petitions filed in the past appear to list only a Level 1 wage. As a result, the department has begun to question the accuracy of wage levels listed on H-1B petitions by employers.
In general, the wage level listed on an H-1B petition is determined by the amount of education and experience that an employer requires in order for the employee to perform the duties of the position. The more education and experience required to perform the duties, the higher the wage level. Other factors may be used by the government to determine the wage rate, including:
- whether the position requires licensure from the state of intended employment;
- the sophistication of the duties to be performed; and
- whether the alien is required to work with a high degree of autonomy.
As a general rule, if the position requires only a bachelor's degree and less than two years' experience, a Level 1 wage is likely applicable. If the position requires a bachelor's degree and more than two years' experience, a Level 2 wage should be applied. If the position requires a bachelor's degree and more than three years' experience, a Level 3 wage should be applied. The Department of Labour has indicated that if keywords exist in the job title, such as 'lead' (eg, lead analyst), 'senior' (eg, senior programmer) or 'head' (eg, head nurse), these will be indicators that a Level 3 wage is applicable. In addition, positions that coordinate the activities of other staff, will also be considered to deserve a Level 3 wage.
For further information on this topic please contact Matthew Morse at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).