(iv) Benefits provided as compensation for services may be credited toward the satisfaction of the employer's required wage obligation only if the requirements of paragraph (c)(2) of this section are met (e.g., recorded and reported as earnings with appropriate taxes and FICA contributions withheld and paid). (C) A copy of the prevailing wage survey or other source data acquired from another legitimate source of wage information that was used to make the prevailing wage determination. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, the State minimum wage, or local minimum wage to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. Departments of Labor and Homeland Security announced an interim final rule to reinstate and make improvements to the program and a final rule to establish the prevailing wage methodology for that program. Wage Rate Paid to Nonimmigrant Workers From 64272.00 Wage Rate . (i) Where an employer timely challenges an OFLC PWD obtained by the Administrator, the 30-day investigative period shall be suspended until the employer obtains a final ruling. H-1B workers must be paid the required wage rate for all nonproductive time caused by conditions related to employment, such as lack of assigned work, lack of a permit, or studying for a licensing exam. Satisfaction of required wage obligation. If the request is timely filed, the decision of OFLC is suspended until the Center Director issues a determination on the employer's appeal. (10) A deduction from or reduction in the payment of the required wage is not authorized (and is therefore prohibited) for the following purposes (i.e., paragraphs (c)(10) (i) and (ii)): (i) A penalty paid by the H-1B nonimmigrant for ceasing employment with the employer prior to a date agreed to by the nonimmigrant and the employer. ETA Form 9035 Cover Pages Instructions . LCA is filed using Form ETA 9035E or 9035. . Nonimmigrant Workers. Fact Sheet #62I: Must an H-1B employer pay for nonproductive time? Hour Week Bi-Weekly Month Year 11.Prevailing Wage Rate * 11a. Documentation shall also be made available for public examination to the extent required by 655.760. The H-1B worker enters into employment with the sponsoring employer, which occurs when the worker first makes him/herself available for work or otherwise comes under the control of the employer, such as reporting for orientation or studying for a licensing exam; No later than thirty (30) days after the H-1B worker is first admitted into the U.S. pursuant to the H-1B petition, whether or not the H-1B worker has entered into employment; For a worker already in the United States, generally no later than sixty (60) days after the date the H-1B worker becomes eligible to work for the employer (the approval date found on the U.S. If an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which take the nonimmigrant away from his/her duties at his/her voluntary request and convenience (e.g., touring the U.S., caring for ill relative) or render the nonimmigrant unable to work (e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant), then the employer shall not be obligated to pay the required wage rate during that period, provided that such period is not subject to payment under the employer's benefit plan or other statutes such as the Family and Medical Leave Act (29 U.S.C. #views-exposed-form-manual-cloud-search-manual-cloud-search-results .form-actions{display:block;flex:1;} #tfa-entry-form .form-actions {justify-content:flex-start;} #node-agency-pages-layout-builder-form .form-actions {display:block;} #tfa-entry-form input {height:55px;} .agency-blurb-container .agency_blurb.background--light { padding: 0; } An agency within the U.S. Department of Labor, 200 Constitution Ave NW For the purposes of subparts H and I of this part: Actual wage means the wage rate paid by the employer to all individuals with experience and qualifications similar to the H-1B nonimmigant's experience and qualifications for the specific employment in question at the place of employment. .agency-blurb-container .agency_blurb.background--light { padding: 0; } On April 13, 2022 the Wage and Hour Division published a revision to, H-2B Temporary Nonimmigrant Worker Visa Program Enforcement (. (iii) If the employer is part of a multinational corporate operation (i.e., operates in affiliation with business entities in other countries, whether as subsidiaries or in some other arrangement), the following three options (i.e., (A), (B) or (C)) are available to the employer with respect to H-1B nonimmigrants who remain on the home country payroll. These instructions contain full explanations of the questions and attestations that make up the LCA, Form ETA-9035 and 9035E, with further information about the employer 's obligations provided in 20 CFR 655 . PDF U.S.Department of Labor Form ETA-9035CP Labor Condition Application for The DOL says that a "general description of the source and methodology" is all that is required, and that the underlying individual wage data used in determining the prevailing wage is not necessary; and. @media (max-width: 992px){.usa-js-mobile-nav--active, .usa-mobile_nav-active {overflow: auto!important;}} An official website of the United States government. The two lowest H-1B wage levels set by DOL correspond to the 17th and 34th wage percentiles locally for an occupation. These instructions contain full explanations of the questions and attestations that make up the LCA, Form ETA-9035 . The first LCA requirement shall be satisfied when the employer signs Form ETA 9035 or 9035E attesting that, for the entire period of authorized employment, the required wage rate will be paid to the H-1B nonimmigrant (s); that is, that the wage shall be the greater of the actual wage rate (as specified in paragraph (a) (1) of this section) or th. The .gov means its official. The records shall be retained for the period of time specified in 655.760. This Veterans Health Administration (VHA) directive provides policy for determining the required prevailing wage by filing Labor Condition Applications (LCA) with the United States Department of Labor (DOL) in connection with petitions for H-1B or other non-immigrant visas that require an LCA. This fact sheet provides general information concerning the payment for nonproductive time under the H-1B program. 212(n) and 212(t) of the INA. In making a PWD, the Chicago NPC will follow 20 CFR 656.40 and other administrative guidelines or regulations issued by ETA. These instructions contain full explanations of the questions and attestations that make up the LCA, Form ETA-9035 . (viii) An employer may file more than one LCA for the same occupational classification in the same area of employment and, in such circumstances, the employer could have H-1B employees in the same occupational classification in the same area of employment, brought into the U.S. (or accorded H-1B status) based on petitions approved pursuant to different LCAs (filed at different times) with different prevailing wage determinations. For the purposes of this section, H-1B includes E-3 and H-1B1 as well. The independent authoritative source survey must meet all the criteria set forth in paragraph (b)(3)(iii)(B) of this section. Before sharing sensitive information, make sure youre on a federal government site. (ii) Circumstances where wages need not be paid. LCA Database: Search Labor Condition Application by Case Number - H1B Wage Rate (Required) . Any employer desiring review of an NPC PWD, including judicial review, shall follow the appeal procedures at 20 CFR 656.41. OFLC National Processing Center (NPC) determination. That as of the date the LCA is filed, notice of the LCA has been provided to workers employed in the occupation in which H-1B workers will be employed and that a copy of the LCA has been, or will be, provided to the H-1B employee at the time the employee reports for work. See Sec. (6) The employer offers H-1B nonimmigrants who are in the United States more than 90 continuous days those U.S. benefits which are paid directly to the worker (e.g., paid vacation, paid holidays, and bonuses). Offers of benefits by employers shall be made in good faith and shall result in the H-1B nonimmigrant(s)'s actual receipt of the benefits that are offered by the employer and elected by the H-1B nonimmigrant(s). (iv) A prevailing wage determination for LCA purposes made pursuant to this section shall not permit an employer to pay a wage lower than required under any other applicable Federal, state or local law. The Arizona minimum wage was last changed in 2008, when it was . Except in the case of a disqualication issued by the Wage Hour Administrator, the employer may submit a correctedLCA to the Department for review, which shall be treated as a new LCA and processed on a "rst come, rst served" basis. Get Recommendations based on H1B Prevailing Wage Levels - 2023 The other legitimate source survey must meet all the criteria set forth in paragraph (b)(3)(iii)(C) of this section. The employer shall base the prevailing wage on the best information available as of the time of filing the application. Full-time salaried workers must be paid the full amount of the required wage rate; Full-time hourly workers must be paid for 40 hours or such other number of hours as the employer can demonstrate as full-time employment for its hourly employees; Part-time workers must be paid for at least the number of hours indicated on the Forms I-129/I-129W petition and incorporated by reference on the Labor Condition Application (LCA) (Form ETA 9035 and/or ETA 9035E); and/or. Attestations -- Detail First: Actual or Prevailing Wage Labor Condition Application for Nonimmigrant Workers ETA Form 9035 & 9035E . The Chicago NPC shall specify the validity period of the PWD, which in no event shall be for less than 90 days or more than 1 year from the date of the determination. (3) Once the prevailing wage rate is established, the H-1B employer then shall compare this wage with the actual wage rate for the specific employment in question at the place of employment and must pay the H-1B nonimmigrant at least the higher of the two wages. Except as provided in this section, the employer is not required to use any specific methodology to determine the prevailing wage and may utilize a wage obtained from an OFLC NPC (OES), an independent authoritative source, or other legitimate sources of wage data. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. Labor Condition Application (LCA) - General Statements & Requirements AUTHORITY: Title 38 United States Code Wage obligation(s) for H-1B nonimmigrant in nonproductive status. [CDATA[/* >