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Employer Provided Wage Surveys for H-1B Visa Purposes: DOL Criteria

In November 2009, DOL issued Prevailing Wage Determination Policy Guidance applicable to employer surveys for petitoins for several non-immigrant visa categories, including H-1B visa classifcation. Specifically, DOL outlines employer survey limitations and criteria as follows: "If the job opportunity is in an occupation not covered by a collective bargaining agreement, the NPWHC shall also consider wage data that has been furnished by the employer; i.e., wage data contained in a published wage survey that has been provided by the employer, or wage data contained in a survey that has been conducted or funded by the employer. The employer can elect to use a current wage determination in the area of intended employment under the Davis Bacon or McNamara O’Hara Service Contract Acts. An employer survey can be submitted either initially or after the NPWHC issues a prevailing wage determination. If the employer provides a wage survey after the NPWHC makes a prevailing wage determination, the new wage data from the employer provided survey shall be considered a new prevailing wage request. The use of such employer provided wage data is an employer option. However, in each case where the employer submits wage data for consideration, it will be incumbent upon the employer to make a written showing that the survey or other wage data meet the criteria outlined below. The employer must provide the NPWHC with enough information about the survey methodology (e.g., sample size and source, sample selection procedures, survey job descriptions) to allow the NPWHC to make a determination with regard to the adequacy of the data provided and the validity of the statistical methodology used in conducting the survey. Criteria for Employer-Provided Surveys: (1) The survey must be recent. If the employer submits a published survey, that survey must: • have been published within 24 months of the date of submission of the prevailing wage request; • be the most current edition of the survey; and • be based on data collected within 24 months of the date of the publication of the survey. If the employer submits a survey conducted by the employer, the survey must be based on data collected within 24 months of the date of submission of the prevailing wage request. (2) The wage data submitted by the employer must reflect the area of intended employment. Area of intended employment means the area within normal commuting distance of the place (address) of intended employment. • If the place of intended employment is within a Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within the normal commuting distance of the place of intended employment. • All locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distances for prevailing wage purposes. • The borders of PMSAs, MSAs, or CMSAs are not controlling in the identification of the normal commuting area; an employer location just outside of the PMSA, MSA, or CMSA boundary may still be considered within normal commuting distance. The terminology CMSAs and PMSAs are being replaced by the Office of Management and Budget (OMB); however, ETA will continue to recognize the use of these area concepts as well as their replacements. (3) The job description applicable to wage data submitted by the employer must be adequate to determine that the data represents workers who are similarly employed. Similarly employed means jobs requiring substantially similar levels of skills. (4) The wage data must have been collected across industries that employ workers in the occupation. (5) The prevailing wage determination should be based on the arithmetic mean (weighted average) of wages for workers that are similarly employed in the area of intended employment. If the survey provides a median wage of workers similarly employed in the area of intended employment and does not provide an arithmetic mean, the median wage shall be used as the basis for making a prevailing wage determination. (6) In all cases where an employer provides the NPWHC with wage data for which it seeks acceptance, the employer must include the methodology used for the survey to show that it is reasonable and consistent with recognized statistical standards and principles in producing a prevailing wage (e.g., contains a representative sample), including its adherence to these standards for the acceptability of employer provided wage data. It is important to note that a prevailing wage determination based upon the acceptance of employer provided wage data for the specific job opportunity at issue does not supersede the OES wage rate for subsequent requests for prevailing wage data in that occupation. Information from employers that consists merely of speculation, subjective impressions, or pleas that it cannot afford to pay the prevailing wage rate determined by the NPWHC will not be taken into consideration in making a wage determination. If the NPWHC does not find the employer provided wage survey acceptable, the NPWHC must notify the employer in writing and include the reasons the survey was not found to be acceptable. Upon receiving this determination, the employer may provide supplemental information, file a new request, or appeal the determination. In issuing wage determinations, the NPWHC may be required to convert an hourly rate to a weekly, monthly, or annual rate, or to convert a weekly, monthly, or annual rate to an hourly rate. As a matter of policy, such conversions shall be based on 2,080 hours of work in a year. Factors relating to the nature of the employer, such as whether the employer is public or private, for profit or nonprofit, large or small, charitable, a religious institution, a job contractor, or a struggling or prosperous firm, do not bear in a significant way on the skills and knowledge levels required and, therefore, are not relevant to determining the prevailing wage for an occupation under the regulations at 20 CFR 655.10 and 20 CFR 656.40. As noted above, the relevant factors are the job, the geographic locality of the job, and the level of skill required to perform independently on the job."

Posted by Mira Mdivani Corporate Immigration Attorney

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