Importance of Determining H1B Wage Levels02 Nov 2015
A decision issued by the U.S. Department of Labor earlier this year illustrates the importance of systematizing the selection of the wage levels when filing H1B petitions. In Quintanilla v. Myriad RBM Inc. the DOL considered whether the employer had paid the correct wage to an H1B employee. This consideration required looking into whether the employer had chosen the proper wage level on the labor condition application (LCA).
Case Background: Back Wage Complaint
Vicente Quintanilla filed a complaint against his employer for payment of back wages. He appealed the initial DOL decision, as it awarded only a small portion of the back wages he had sought. In his appeal, he argued that his former employer had wrongly classified him as working in a level I position, which is the lowest wage level. Mr. Quintanilla argued that he was actually working in a level II position, which carries a higher wage rate.
Using DOL Wage Worksheet
The attorney who had prepared the H1B petition in Quintanilla used the DOL wage worksheet, found in the Prevailing Wage Determination Policy Guidance, to assess the proper wage level. This is standard practice for reputable immigration attorneys. The DOL found that the wage worksheet had been properly completed and, thus, the employer’s H1B petition contained the correct wage.
DOL Reviews Wage Worksheet
All parties agreed that Mr. Quintanilla’s position was properly classified under the O*Net category of “Medical Scientists, Except Epidemiologists.” The DOL reviewed the wage level claim by applying the Prevailing Wage Determination Policy Guidance. This guidance sets forth a system for comparing the requirements of the employer’s specific job offer to the standard requirements for similar occupations on O*NET, which is a DOL-sponsored program that serves as “… the nation’s primary source of occupational information.” All occupations start with a level I wage for an entry-level position. Where appropriate, points are added to the DOL wage worksheet to determine whether a higher wage level is required.
There are four steps in determining when a wage level should be increased. The employer’s offered job is compared to the O*NET description for that type of occupation. If there are “special” skills or requirements in the employer’s job description not encompassed by the generic O*NET job description, then the wage level is increased. Otherwise, it remains at level I.
DOL Finds Positions was Properly Classified as Level I
The DOL went through the education and experience components of the wage level analysis and concluded that there was no evidence to support that any step in the wage worksheet should have been increased. Importantly, the DOL noted, even if certain parts of the job are above level I, that would not automatically put the job at level II. The purpose of the wage worksheet is to go through the factors in the checklist and use the definitions of each level as a guideline. Ultimately, the DOL determined that the position had been properly classified at level 1.
Accurate Employer Info Required for Wage Worksheet
In Quintanilla, a key reason the employer prevailed was because of the proper use of the wage worksheet. It should be noted, however, that a wage worksheet is only as good as the information provided by the employer. If the employer had provided inaccurate information to the attorney for use in the worksheet, the results of this case likely would have been quite different.
The lesson of this case is to use the wage worksheet when making an independent wage level determination of an LCA in an H1B filing. An H1B employer must be prepared to defend the wage level decisions, in the event of a DOL investigation. This starts with properly assessing job requirements and following the DOL systems for determining wage levels based on the job requirements. The attorneys at the Murthy Law Firm use the wage worksheet for H1B cases, carefully reviewing the factors listed for proper wage level decisions. This is done to protect both the employer and the H1B workers.
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