It is a source of confusion for many foreigners when they realize that there is actually a minimum wage that they must be paid to be sponsored on an H-1B Visa, E-3 Visa or O-1 Visa that is not related to general US minimum wage law. This is known as the Prevailing Wage and it differs by profession, level, geography and nature of the role.
When an employer files the ETA-9035(e) form to the Department of Labor (DOL) to get your approved Labor Condition Application (LCA), a part of that form relates to inputting the Prevailing Wage from a verified source. This is the only step required in a standard E-3 visa application prior to an applicant going to their US Consulate interview if outside the country but it is the preceding step to filing the I-129 form to the USCIS which is mandatory for H-1B visa, the O-1 Visa and for the E-3 Visa if the applicant is already present in the US under an approved status.
The actual Prevailing Wage can be slightly subjective but the important thing to note is that it is never a very low amount and the LCA can be rejected if the DOL determines it is not the appropriate job code and pay level given your role. Many foreigners fall at this step in their eagerness to get to the US they are willing to be paid a lot less for the chance not realizing this is part of the process.
The are a few government approved sources but the most common is the FLC Data Center. They have a wizard where you can enter your location and job type and you can manually find which job code is most suitable relative to the role you are going to fill and the Level from I to IV which largely corresponds to seniority.
It is here with job codes and similar job types and the seniority that people get creative with what job code is suitable to match their pay level. However you want to be careful as if you are a professional leading a team and you just put down a Level I, Entry Level Job code for your job type, you could be rejected and face additional scrutiny for any future application. As mentioned these job rates relate to professional jobs so the rates are far higher than any minimum wage level for the state.
Also it is worthwhile noting there will be significant differences for the same role depending on your location. A Business Analyst working for Ernst & Young for example in NYC will have to be paid more than if they were working in Seattle at the minimum allowed level. Ultimately you should negotiate the best wage, benefits, bonus, equity and severance package policy at the beginning and this minimum level should never be an issue.
Cj
Hi CJ,
I am about to apply for my first e3 visa and filling out the LCA. My pay will be quite low at $14/hour but it is above the level 1 wage for my occupation according to the flc database. The mean wage on the database is $36/hour but I was informed it should be fine as long as it is above the level 1 wage. Is this correct? It is the first job I am getting in my field using my degree so can accept this wage, but do you think it will be too low when filing the LCA/going for the interview?
Sarah the thing to note is the specialty occupation and bachelor’s degree conditions for the E-3 visa. It is not merely enough that the prevailing be at or above the level/area of your job but the job itself be considered in general a professional role that requires a bachelor’s degree as a minimum criteria. You can read about that here; (https://visacoach.org/2009/05/22/e3-visa-the-bachelors-degree-specialty-occupation-conditions/). This goes beyond the fact that you actually have a degree yourself. So if all of those things, your own background and the company itself have no issues then you should be fine throughout your application and interview process.
Cj
Hi CJ,
I have a question about prevailing wage. I have read that your ‘wage’ can be made up of salary plus all benefits received, i.e. total compensation, do you know if that’s correct? In my first e3 application the salary offered was not as high as prevailing wage, so my lawyer used a different job code but then had to explain why I needed a bachelors degree to do this job. I am hoping to submit my first renewal on my own, my wage has not changed (no comment) but my total compensation will satisfy the prevailing wage.
Cheers
LJ
Lara your prevailing wage has to be the salary that you are paid not things like health benefits. The salary whether annual or hourly has to be at least the same as the job code put on your LCA application. However yes not all job codes may be deemed valid for a visa sponsorship role so that is why questions around degree requirements may come up if you just select any job code.
Cj
OK, I hope I am able to provide a suitable justification this time around without a lawyer and use the same job code. This is why I wish I could do the LCA sooner so I can make mistakes and still get it done in time!
LJ
Just found the LCA that my lawyer submitted last time, so I will just copy that I suppose!
Hi CJ,
I am on an E3 visa now but need to renew. My job has changed (promotion) and therefore I need to change my job code. Here’s my issue – my salary will be lower than the level 1 wage listed on the new job code I now qualify for. Is this a problem?
Or should I stick with the job code I have now? This job code is for a lower level job, one I have now. My new wage would be above the level IV wage listed. What would you suggest?
TCS you have to paid at the prevailing wage level or higher so it is better to stick with your current job code.
Cj
Hi CJ,
Thank you for all your help on this.
Do you need to stick to the list of occupation in appendix 1 on the Labor Condition Application Cover Page (the instructions on how to fill out the LCA)? Purchasing Management Occupation is listed as code 162 but if I look up a Purchasing manager the prevailing wage is too high. Is it likely that I will be approved if I put done a Wholesale Buyer instead? The prevailing wage at level I is around the right amount and I will be doing what is covered in that role but I am worried that they may say you don’t need a degree for it.
Do you have a list of jobs that have been approved before or not approved?
It seems like all jobs’ prevailing wage with the title ‘manager’ in it are too high.
Can you be approved as an assistant or coordinator?
Thanks!
Hey CJ,
did you have any advice for my comment above?
Thanks so much for your help!
Hi,
The prevailing wage for my position is ridiculously high (more than what I would get in Aus) therefore the company are unwilling to pay it. Do I have any options?? Has anyone else experienced this??
Thank you
Hi There – does the job need to be the mean wage or can it be anything over Level 1?
The job Title is going to be Social Media something but that does not have a job code.. so I tried Public Relations Specialist…
My employer filed an LCA stating that the wage sources was a CBA. Since filing the application is has been discovered that the employer doesn’t have a CBA and the pay given is significantly lower than the prevailing wage? What should I do as I have been hired and paid?
Hi CJ
I’m trying to determine the min wage I would need on the E3 visa as a marketing specialist.
Having done my research and looking at:
http://www.flcdatacenter.com/OesQuickResults.aspx?code=13-1161&area=29820&year=15&source=1
My question is, the above link says that the O*Net™ JobZone is 4, does that mean my min wage needs to be the Level 4 Wage? or is the Level 1 Wage ok?
Thanks in advance
Hi All
Since posting my question above, I have now confirmed the answer through a lawyer.
JobZone 4 does not mean you have to be paid at the Level 4 wage.
The prevailing wage (minimum wage) just needs to be atleast the Level 1 Wage.
Hi CJ,
Hoping you may have some advice, I have been offered a position as an Assistant Designer for a fashion label but the prevailing wage is lower than what is mentioned for job code ‘Fashion Designer’. Do you know if I am able to put the job code for ‘Designer, other’ on my LCA – as the position would pay above the wage of this description – the other category, however, has no skill level set. It seems a bit trick on how I should go about this and any advice would be appreciated.
Hi CJ,
I’m currently working for an organisation in the US on an L1a. I’m considering doing a secondment with another organisation (my original employer would pay me a stipend but I’d effectively be working for another company). Is it possible to continue work on my L1 (considering I’m still paid by that original employer), or would I need to apply for an E3?? If I apply for an E3, will I face troubles as the secondment employer sponsoring the E3 is not actually paying me therefore not hitting the salary requirement?!
Thanks for your help,
Nic
Hi, wanted to clarify if anyone knows whether the ‘prevailing wage’ is considered as anything above Level 1, or whether it must match or be above the ‘Mean Wage H-2B’? Thanks! 🙂