The University must pay the H-1B beneficiary the required wage, which the Department of Labor defines as the higher of two figures:
- the “actual wage” rate, or
- the “prevailing wage” rate.
Federal regulations require employers to document the actual and prevailing wage in advance of filing the H-1B petition with U.S. Citizenship and Immigration Services (USCIS). To comply with these regulatory requirements, the appointing unit must include both an Actual Wage Memorandum and a Prevailing Wage Intake Form with each H Visa Request.
The Actual Wage
The actual wage is the wage rate paid by the appointing unit to all other individuals with qualifications and duties similar to those of the H-1B beneficiary for the specific employment in question. The “appointing unit” is the most meaningful unit for comparison, whether a school/college, department, division, or program. For example, if the department sponsoring the visa has no employees of remotely similar qualifications or duties to the H-1B beneficiary, then the most meaningful unit for comparison may be the school/college instead of the department.
In determining the actual wage, the appointing unit may take into consideration objective factors including experience, education, job responsibility and function, specialized knowledge, and other legitimate business factors.
When there are employees in the appointing unit with qualifications and duties similar to the H-1B beneficiary, the actual wage is the amount paid to these other employees; this can be expressed as a range.
When there are no other employees in the appointing unit with qualifications and duties similar to the H-1B beneficiary, the actual wage is the salary offered to the H-1B beneficiary.
The appointing unit must include with each H Visa Request an Actual Wage Memorandum which shows how the wage offered to the H-1B beneficiary relates to wages paid by the appointing unit to all other individuals with similar qualifications and duties for the specific employment in question. The Actual Wage Memorandum must include sufficient detail so that a third party could understand how the actual wage was determined.
The Prevailing Wage
The prevailing wage is used as a measure of the minimum allowable wage to be paid by employers seeking to employ a foreign national in H-1B status. It is a calculation of the average wage rate paid by employers to similarly-employed workers in substantially comparable jobs in the geographic area of intended employment. (If there are no substantially comparable jobs in the area of intended employment, the prevailing wage is the average wage paid by employers to similarly-employed workers outside of the area of intended employment.)
Before the University can petition USCIS for an H-1B visa, ISO requests a “prevailing wage determination” from the U.S. Department of Labor (DOL). Information about the position is provided by ISO to DOL. This information is based on a description of the position that the appointing unit includes with the H Visa Request. It is important that the appointing unit accurately describe the position’s minimum and essential job requirements, as well as its duties, in detail, so that DOL can make a correct wage determination.
Since January 2010, all prevailing wage requests are sent to DOL’s National Prevailing Wage Center in Washington, DC. The National Prevailing Wage Center recommends that prevailing wage requests be submitted “at least 60 days before the prevailing wage determination is needed.” ISO will need additional time to prepare the prevailing wage request and to respond to any DOL inquiries.
The Department of Labor collects national salary wage data annually; therefore, prevailing wage amounts can be expected to fluctuate from year to year. Campus departments preparing to extend the stay of an H-1B should anticipate the possibility that the prevailing wage may have increased since the previous H-1B petition was filed with USCIS.
Public Access File
The documentation establishing the actual wage, and the DOL prevailing wage determination, are retained in a public access file in Academic Personnel for disclosure upon request. These documents are maintained by the University in order to demonstrate compliance with wage requirements in the event of a Department of Labor audit.