By: Hasan Abdullah, Esq.

Before an employer pursues an H1B petition to sponsor a foreign worker in a specialty occupation, it needs to assess whether it is positioned to offer the worker prevailing wage. Unlike other nonimmigrant worker visa categories, H1B carries with it the requirement that the employer offer and pay the employee prevailing wage.

What Is Prevailing Wage?

Prevailing Wage is defined as the hourly wage, usual benefits and overtime, paid in the largest city in each county, to the majority of workers, laborers, and mechanics. Prevailing wages are established, by the Department of Labor & Industries, for each trade and occupation employed in the performance of public work. They are established separately for each county, and are reflective of local wage conditions.

The prevailing wage for a particular occupation category can be discovered on the Foreign Labor Certification Data Center Online Wage Library (http://www.flcdatacenter.com). Occupation categories can be discovered on USDOL O*Net website (http://online.onetcenter.org). It important to note that while there are occupation categories the O*Net-SOC code shows a bachelor's degree or greater as the minimum requirement (jobs with an SVP of over 7); such occupations are not necessarily eligible for H1B. Discussion of what specifically qualifies an occupation for H1B approval is nuanced and beyond the scope of this article.

Choosing Alternate Occupation Categories to Discover Lower Wage Rates

In certain cases, a job description may fit into more than one category because the duties may involve a combination of occupations. The most typical example of this is the occupation of "Programmer Analyst."

There is no O*Net-SOC code for Programmer Analyst, but there is one for Computer Programmers and one for Computer Systems Analyst. The prevailing wage for Computer Programmers is generally a few thousand dollars lower. So, in a case where the duties of the Programmer Analyst are roughly divided equally between the categories (or if the employer is willing to modify the duties accordingly), we may select Computer Programmer to save a few thousand dollars in wage if the employer is only able to pay the minimum prevailing wage.

Part-Time H1B

In certain cases, an employer wishes to employ a foreign worker, but only needs the worker on a part-time basis. The minimum work week for an H1B worker is 20 hours per week.

For example, assume an employer seeks to employ a financial analyst in Oakland, California. The lowest prevailing wage for this occupation as of the publication of this article is $59,488/year or $28.60/hr. On a part-time basis, the employer would have to pay an annual salary of $29,744/year.