Before filing a petition for H-1B classification, the regulations require employers to obtain certification from the Department of Labor (DOL) that the organization has filed a Labor Condition Application (LCA) in the occupational specialty in which the H-1B beneficiary will be employed. See 8 C.F.R. § 214.2(h)(4)(i)(B)(l). The employer submits the LCA to the DOL to demonstrate, inter alia, that it will pay an H-1B worker the higher of either the prevailing wage for the occupational classification in the area of employment, or the actual wage paid by the employer to other employees with similar duties, experience, and qualifications. See Section 212(n)(l) of the Act; 20 C.F.R. § 655.731(a). Under 20 CFR §655.731(a)(2), the employer is not required to use any specific methodology to determine the prevailing wage and may utilize a wage obtained from the Office of Foreign Labor Certification (OFLC) Occupational Employment Statistics (OES); an independent authoritative source; or other legitimate sources of wage data.
In some instances, an employer may choose to use an alternative wage survey, for instance when the OES wages do not accurately represent marketplace wages. The survey must have been conducted by an independent authoritative source and must meet all the criteria set forth in 20 CFR §655.731(b)(3)(iii)(B). To file the LCA using an alternative wage survey, the employer must simply indicate the prevailing wage rate in question F.a.11 on the ETA Form 9035. The employer must also check off question F.a.14 to indicate that a prevailing wage was obtained using another legitimate source (other than OES) or an independent authoritative source; check off the “source type” as “Other/PW Survey”; indicate the ‘Source Year’; and indicate the name of survey.
Once the LCA is certified, a signed copy must be submitted with the H-1B petition. The employer is not required to submit any other documentation in support of the LCA. However, although the LCA falls under the purview of the DOL, in adjudicating the H-1B petition, U.S. Citizenship and Immigration Services (USCIS) may request proof that the certified LCA corresponds to and supports the H-1B petition. This would normally be done in the form of a Request for Evidence (RFE) following the filing of the petition. What this means in practical terms is that an employer relying on an alternative wage survey must be prepared to prove to USCIS that the duties of the proffered position align with the occupational classification indicated on the LCA. USCIS’ recent decisions confirm its position on this matter. Matter of Simeio Solutions, 26 I&N Dec. 542 (AAO 2015) also states:
DOL reviews LCAs "for completeness and obvious inaccuracies" and will certify the
LCA absent a determination that the application is incomplete or obviously inaccurate.
Section 212(n)(l )(G)(ii) of the Act. In contrast, USCIS must determine whether the
attestations and content of an LCA correspond to and support the H-1 B visa petition.
The DOL would only have an opportunity to review an employer’s job description if the employer submits a prevailing wage request on ETA Form 9141. As it is very uncommon for employers to request a formal prevailing wage determination in the context of H-1B petitions (mostly due to the long processing times), the DOL does not perform any substantive review of the proffered H-1B position. The USCIS has therefore made it clear that it will compare the Standard Occupational Classification (SOC) code (codes established and used to classify all occupations in order to provide a means to compare occupational data) and the wage level indicated on the LCA to the claims in the H-1B petition in order to ascertain whether the employer has selected the SOC code that most closely matches the proffered position. USCIS has held that it cannot properly assess whether the proffered position is a specialty occupation if there is a mismatch between the job duties and the SOC code on the LCA.
To be able to respond to a USCIS RFE challenging whether the LCA corresponds with and supports the petition, the employer must be able to demonstrate that the duties of the proffered position are classifiable under the selected occupational classification listed in the alternative wage survey. The job duties listed in the survey will likely be quite generalized and the employer must be ready to articulate how the H-1B job duties match the duties of the occupational classification. The employer’s education and experience requirements for the H-1B petition must also match the education and experience requirement for the occupational classification selected in the survey.
Even if the employer has selected the correct occupational classification and wage level from the alternative wage survey, it must still select the closest SOC code match from a dropdown menu when completing the LCA. For example, the alternative wage survey may have an occupational classification called Software Development Engineering (High Tech). In completing the LCA form, the employer would still have to select 15-1252, Software Developers from a dropdown menu, as this is the closest SOC code from the FLC database. The employer should therefore also be prepared to show the link between the proffered position and the FLC SOC code by presenting the close similarities between the job duties listed for the SOC code in the Occupational Outlook handbook (OOH) and on O*NET and those listed in the H-1B petition.
As employers gear up to file thousands of H-1B petitions once the upcoming H-1B lottery is conducted, it will be important to bear in mind that while alternative wage surveys can certainly be used, great care should be applied in selecting the occupational classification and wage level from that survey and the SOC code listed on the LCA. The employer should be ready to defend its decisions if challenged in an RFE.
