Tag Archives: dol

Prevailing Wage: How Much Does A Foreigner Need To Be Paid

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

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H1B Visa November Update

You may remember from our October H1B Visa update for FY2010 that the USCIS reported that were going to continue to accept H1B visa petitions until the H1B visa quota for the year has been exhausted.

The latest USCIS update for the quota was released on November 6, where the reported receiving 54,700 H1B visa petition filings on top of the already 20,000 approved advance degree cap exemption filings. The annual quota is of course 65,000 for the main group so there is still at least 10,000 visas available and probably a fair number more as many of the H1B visa petitions will be denied or revoked.

The other major update the USCIS released for the H1B visa for November is that due to the Department of Labor (DOL) having a major backlog and delays with certifying and issuing the approved Labor Condition Application (LCA) which is need prior to filing the H1B visa petition with the USCIS.

For the next 120 days from November 5 2009, through March 10, 2010 (or whenever the cap is exhausted), the USCIS will accept H1B visa petitions even without the approved LCA from the DOL if it has been filed at least 7 days prior to sending the petition to the USCIS. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA to prove this when filing with the USCIS without the approved LCA.

Following this H1B visa applicants and the prospective sponsor employers who make use of this temporary flexibility in the normal filing procedures for H-1B visa petitions must wait until they receive a request for evidence (RFE) before they submit the DOL approved LCA to USCIS in support of the H-1B visa petition.

The USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE.  Ultimately the USCIS will only approve H-1B visa petitions that include certified approved LCAs.

The most interesting thing has been since the October 1 (i.e. the start of the new US Immigration year), the rush of applicants and companies filing for the H1B visa meaning the job market is seeming picking up for college educated folks despite the 26 year record high 10.2% unemployment rate nationally.

Actually if you look at the following NY times interactive chart for unemployment you can easily see how not all groups are effected equally and the market for laid off H1B visa workers, F1 Student visa graduates and foreigners wanting to work in the US in general may be looking up finally 🙂

Good Luck,
CJ

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