Though permissible, employers often and/or consistently fail to consider the following factors for determining the prevailing wage level or the actual wage. “Prevailing” wages are defined in the US Department of Labor’s (DOL) regulations and are more often than not used in the H-1B visa context.
This thought process does not discuss what “prevailing” wages are. As we dive into the 2014 H-1B quota season we offer a menu that an employer should review when determining the accurate “prevailing” wage level for a given position.
Some objective and possibly “business-driven” subjective factors – to consider include:
  1. What are the requirements for the position – minimum required education and experience for the duties that are to be performed?;
  2. which are the technologies (skill sets) for which the individual is being hired and the years of experience in that technology;
  3. How much experience does the individual have when compared to the minimum experience required?
  4. degree of independent responsibility that the individual will be expected to exercise in the discharge of his duties;
  5. individual’s role vis-à-vis the client – degree and kind of client interaction;
  6. Competitiveness of the client account;
  7. reputation of the undergraduate school attended;
  8. the field of study;
  9. the number of years of academic pursuits;
  10. The total years of experience, his/her years of experience with petitioning employer and/or years of experience in the IT industry;
  11. Experience of global project delivery systems;
  12. The relative productivity and performance capability of the respective employee, as documented by objective verifiable criteria, such as ability to meet deadlines and through customer feedback - objective evaluations rendered by project managers;
  13. The relative shortage of professional personnel within the occupational category;
  14. Willingness to relocate / travel
  15. Soft skills such as communication skills, interpersonal skills, organization skills negotiation skills and mentoring skills.

Real world factors can and should be considered in assessing the appropriate “prevailing” wage level for a particular position. Such a determination may also permit the employer to defend any audit or inquiry into the prevailing wage.

About The Author

Rohit Turkhud has been specializing in the practice of the US Immigration & Nationality Laws since 1985. For the first 9 years of his career his practiced focused on asylum and removal cases. Since 1994 he has been specializing in employment based and family based matters. From 1994 to 2001 Rohit served in senior executive positions at IT companies and headed their legal and international recruiting divisions. He was an integral part of setting up an IT company's UK operations and travelled extensively to the UK in the discharge of those responsibilities. From June 2004 to September 2012 he was a partner at the Law Offices of Cyrus S. Nallaseth PLLC, and at Nallaseth & Turkhud PLLC. He continues to focus on employment based immigration matters. Rohit has joined FLG, as a partner, in the pursuit of excellence and expansion. Rohit seeks to contribute to the international growth of FLG and help ensure that we always provide the quality of services and attention to customer satisfaction that has catapulted FLG to the top of law firms specializing in the field of immigration laws. He is proud to be a member of a team that reaches from Miami to San Francisco and from New York to Denver, with Michigan being the heart of the network. He has authored a frequent immigration law column for India Today's North American edition. He is a guest speaker on business immigration issues, specially relating to H-1B and the new PERM rules and regulations. He has authored an article in the second edition of the authoritative "THE PERM BOOK". On the second and fourth Tuesday of each month, Rohit hosts a prime time LIVE immigration show on Jus Punjabi, a national cable network channel. Mr. Turkhud is fluent in the Hindi, Gujarati and Marathi languages.