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Department of Labor Provides Guidance on Prevailing Wage Surveys for H-1B, H-1B1, and E-3 Programs

The U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC) recently issued Round 3 of Frequently Asked Questions (FAQs) regarding prevailing wages.  The newly released FAQs, provide guidance on how to complete the underlying Labor Condition Application (LCA) on ETA Form 9035/9035E required for the H-1B, H-1B1, and E-3 visa petitions.

In instances where the OFLC Online Wage Library does not provide a leveled wage for a specific geographical area and occupational code, the new FAQs provide guidance on how to complete section G of the ETA Form 9035/9035E for the Employment and Prevailing Wage Information.

The new FAQs also provide guidance on how to identify an independent authoritative source survey or another legitimate prevailing wage survey in the same section of the ETA Form 9035/9035E. OFLC makes it clear that the information provided to identify the wage source must be sufficient to ensure that both the survey company and survey title are obviously identifiable. The FAQs also address the use of untitled custom wage surveys on the ETA Form 9035/9035E.

In the FAQs, OFLC further states that while it does not maintain a list of acceptable prevailing wage surveys,  it publishes LCA Disclosure Data on commonly used prevailing wage surveys that may be helpful to an employer as a list of potentially acceptable wage sources.  LCAs are still processed by DOL on a case-by-case basis.

The H-1B, H-1B1, and E-3 programs require the employer to pay the prevailing wage as of the time of the filing of the LCA application or the actual wage for the specific employment in question, whichever is higher.  The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. The wage rate is generally obtained from the appropriate State Workforce Agency or from other legitimate sources of information, such as the OFLC Online Wage Library.  Employers must file the electronic LCA for H-1B, H-1B1, and E-3 non-immigrant workers on ETA Form 9035/9035E through the Department of Labor’s online portal.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume V, Number 219
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About this Author

Kristen Burke, Greenberg Traurig Law Firm, Houston, Immigration Law Attorney
Of Counsel

Kristen T. Burke focuses her practice on corporate immigration matters, including visa petitions, I-9 compliance, and applications for submission to various U.S. governmental agencies such as U.S. Citizenship and Immigration Services and U.S. Department of Labor. She represents multinational corporations (particularly in the energy, technology and banking sectors), transferring employees to the United States and companies hiring foreign nationals to work in the United States. Kristen advises clients on regulations for foreign nationals working offshore in the Outer...

713-374-3500
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