Paying the Listed Prevailing Wage on the Labor Certification

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Hi William,

I currently have H-1B visa. My Labor Certification has been approved, but my current salary is not close to the prevailing wage listed on the approved Labor Certification, and my current employer's business financial situation is not really good. To obtain approval of my I-140 Form immigrant petition, does my employer must pay the listed prevailing wage on the Labor Certification?

Answer,

The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. U.S. employers can obtain this wage rate by submitting a request to the National Prevailing Wage and Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs.

The requirement to pay prevailing wages as a minimum is true of most employment based visa programs involving the Department of Labor. In addition, the H1B, H1B1, and E3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.

To obtain approval of an I-140 immigrant petition for a foreign national worker, an employer must show ability to pay the offered wage on Labor Certification. USCIS' regulations state that the Form I-140 petitioner must be able to pay the offered wage from the priority date forward. It means that an employer must show the ability to pay the prevailing wage from the year in which the Labor Certification was filed.

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