The H-1B program: Mend it, don't end it
by mail and an employer that already had waited four to six weeks for a prevailing wage determination could be required to wait an additional four to six weeks for LCA certification.
In order to comply with the law and meet the regulations, a prevailing wage must be derived from one of the following sources:
- a collective bargaining agreement negotiated at arms-length between a union and the employer;
- a State Workforce Agency (SWA) determination using the arithmetic mean of wages of workers similarly employed in the area of intended employment;
- an independent authoritative source reflecting the median wage of workers similarly employed in the area of intended employment, based upon recently collected data, and representing the latest published prevailing wage finding by the independent authoritative source for the occupation in the intended area of employment; or,
- another legitimate source of wage information reflecting the median wage of workers similarly employed in the area of intended employment, based upon the most recent and accurate information available, and that is reasonable and consistent with recognized standards and principles in producing a prevailing wage.
It is worth noting that the only Prevailing Wage Determination (PWD) that affords an employer a safe harbor providing immunity from questioning the validity of the prevailing wage is a determination made by a State Workforce Agency.
Moreover, Hira fails to mention that, while employers are not required by the regulation to submit documentation with the LCA, they are required to retain supporting documentation and provide such upon a request for public inspection or in the event of an audit or investigation. The documentation that an employer must make available for inspection to any member of the public so requesting with one working day after the LCA is filed with the DOL includes, but is not limited to:
- a copy of the LCA and cover pages;
- documentation of the wage rate to be paid the H-1B worker;
- a full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation for which the H-1B worker is sought;
- a copy of the documentation the employer used to establish the “prevailing wage” for the occupation for which the H-1B worker is sought; and,
- a summary of the benefits offered to U.S. workers in the same occupational classification as H-1B workers.
Critics of automated LCA certification are correct that unscrupulous employers will knowingly falsify prevailing wage information and risk detection and
