All U.S. employers of H-1B foreign workers are required to pay employees the prevailing wage for the position to be filled as determined by the U.S. Department of Labor (DOL). The Department of Labor (DOL) has the responsibility to ensure that the U.S. workforce is being adequately protected, making sure that foreign workers are not doing the same work as U.S. workers for less pay.
The DOL currently uses compensation information contained in the Occupational Employment Statistics (OES) Survey, which is published by the Office of Employment and Unemployment Statistics, Bureau of Labor Statistics, U.S. Department of Labor. Use of this information in setting prevailing wages is an employer’s best protection against challenges from the Department of Labor since it is the same compensation data that they use in determining whether an employer is paying its H-1B workers the prevailing wage for the position to be filled.
In addition, U.S. Citizenship and Immigration Services (USCIS) has placed additional scrutiny on H-1B Visa petitions, specifically targeting the Prevailing Wage and associated wage levels used in the application process. When an employer relies upon a DOL issued prevailing wage determination during the H-1B visa petition process, they are protected against DOL challenges to the salary being paid to the foreign worker.
DOL typically takes 3 months to process requests for a Prevailing Wage Determination (PWD). If you plan on petitioning a worker on an H-1B visa, we suggest commencing the PWD and H-1B Visa petition process at least 6 months in advance.