Thread: US consulates reportedly denying H-1B petitions for improper wage level selection

US consulates reportedly denying H-1B petitions for improper wage level selection

November 15 2013

US consulates are reportedly increasing their scrutiny of H-1B visa applications with respect to the wage rates paid to H-1B workers.

Before a H-1B worker may apply for a H-1B visa, his or her US employer must file a H-1B petition with the US Citizenship and Immigration Services (USCIS). Before the H-1B petition may be filed with USCIS, the US employer must obtain a certified labour condition application from the Department of Labour. The certified labour condition application lists the wage rate that the employer promises to pay the H-1B worker in the United States. This wage rate is based on the wage level selected by the US employer on the labour condition application, and is based on the complexity of the job duties and the amount of education and experience that is required to perform those duties. The Department of Labour issued guidance in 2009 that defines each of the four wage levels that US employers may select.

Wage levels
The wage levels are defined as follows:

• Level 1 (entry) – wage rates are assigned to job offers for entry-level employees who have only a basic understanding of the occupation. These employees perform routine tasks that required limited, if any, exercise of judgement. The tasks provide experience and familiarity with the employer's methods, practices and programmes. The employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and expected results. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training or an internship are indicators that a Level 1 wage should be considered.
• Level 2 (qualified) – wage rates are assigned to job offers for qualified employees who have attained, through either education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgement. An indicator that the job request warrants a wage determination at Level 2 would be a requirement for years of education and/or experience that is generally required as described in the O*NET Job Zones.
• Level 3 (experienced) – wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgement and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be indicators that a Level 3 wage should be considered. Key words in the job title can be used as indicators that an employer's job offer is for an experienced worker. Words such as 'lead' (eg, lead analyst), 'senior' (eg, senior programmer), 'head' (eg, head nurse), 'chief' (eg, crew chief) or 'journeyman' (eg, journeyman plumber) would act as indicators that a Level 3 wage should be considered.
• Level 4 (fully competent) – wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgement and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgement and effectiveness in meeting the establishment's procedures and expectations. They generally have management and/or supervisory responsibilities.

Comment
It appears that the government is concerned that some US employers may be selecting Level 1 wage rates on the labour condition application for positions that are not entry-level roles. US employers must be careful when completing the labour condition application and ensure that the proper wage level is selected, following the above Department of Labour wage-level definitions. Failure to select the proper wage level will likely result in the denial of a H-1B worker's visa application. It will also likely result in revocation of the H-1B petition. If there is a pattern of selecting the improper wage level by the US employer when completing the labour condition application, it may result in the employer being fined or banned from participating in the H-1B programme.

http://www.internationallawoffice.co...e-7878e14bc875

Yes, after oh, around 14 years or so, our government is starting to wake up to the fraud inherent in the guest worker visa programs. The hype was that these people are the "best and brightest" and we need them so bad - so they bring them in at near entry-level wages and give the American who was previously doing the job a pink slip. Often they force the American to do a "knowledge transfer" which is, they make the American worker train his replacement, or trick him into doing so.

Originally Posted by BetsyRoss

Often they force the American to do a "knowledge transfer" which is, they make the American worker train his replacement....

Displaced American workers are in a double bind. If they refuse to train the people who are taking their jobs, they risk being fired and, possibly, also receiving negative remarks on any referral document that they might seek.
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