With a growing number of Requests for Evidence citing wage-level mismatches and misclassification issues, and the DOL launching new enforcement initiatives that have already resulted in certified investigations, employers must approach prevailing wage determinations with great care. These developments underscore that selecting the correct prevailing wage is not just a mere administrative step—it is a key compliance safeguard. A methodical, well-documented approach to wage selection strengthens the H-1B petition against future challenges.

Understanding the Importance of the Prevailing Wage in H-1B Filings
Selecting the correct prevailing wage is central to maintaining the integrity of the H-1B program (or related non-immigrant programs such as H-1B1, E-3) and ensuring that the employment of foreign workers does not adversely affect U.S. workers. The Department of Labor’s prevailing wage requirement exists to create a level playing field—employers must offer H-1B workers a wage that is at least equal to the prevailing wage for the occupation in the area of intended employment. By doing so, the regulation prevents employers from undercutting local wage standards or using foreign labor to fill positions at below-market pay. This safeguard ensures that U.S. workers are not displaced or disadvantaged by lower wage offers to foreign nationals.

From a compliance standpoint, failing to meet the prevailing wage standard can lead to Requests for Evidence, petition denials and revocations, and significant exposure during DOL audits, including back-wage assessments and civil penalties. Adhering to this requirement demonstrates that the employer is maintaining fair labor standards while lawfully accessing global talent. The DOL’s Prevailing Wage Determination Policy Guidance (Revised November 2009) continues to be the foundational framework for how employers must identify and apply the appropriate wage level in H-1B filings and remains the benchmark during compliance reviews and investigations.

Step 1: Determine the Correct Occupational Classification
The process begins by determining the correct occupational classification. Employers must analyze the job’s actual duties, required skills, knowledge, and work activities and identify the corresponding occupational code using O*NET OnLine. Job titles alone are not sufficient. When a role spans multiple categories, employers are advised to use the occupation that best reflects the highest level of skill and wage. Employers should be prepared to explain how the job duties align with the chosen code in future audits or inquiries.

Step 2: Identify the Correct Geographic Area of Employment
The next step is to identify the correct geographic area of employment. The “area of intended employment” is the location where the H-1B worker will perform services or within normal commuting distance of that location. This area dictates which prevailing wage tables apply. Employers should determine whether the worksite is located within a Metropolitan Statistical Area (MSA) or another sub-state region as published in the DOL’s wage data. The wage for the precise area should be used, and employers should note how they determined the applicable commuting area to ensure clarity and defensibility.

Step 3: Choose the Appropriate Prevailing Wage Source
Once the occupation and area are identified, the employer must choose the appropriate prevailing wage source. The DOL allows three primary sources: a valid Collective Bargaining Agreement (CBA) if one applies, the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) data available through the Online Wage Library, or an acceptable employer-provided or third-party wage survey. For most H-1B petitions, the OES data are the standard reference.

Step 4: Determine the Correct Wage Level (Level I–IV)
When using the Online Wage Library, determining the wage level—Level I through Level IV—is a critical part of this process. The DOL guidance provides a structured method for identifying the proper level by comparing the job’s requirements against the O*NET norms.

• Level I applies to entry-level workers who perform routine tasks under close supervision.
• Level II corresponds to employees who are fully competent and capable of performing moderately complex work with limited guidance.
• Level III applies to experienced professionals who exercise independent judgment and may mentor or guide others.
• Level IV reflects expert or managerial roles that involve significant decision-making, advanced knowledge, or supervision of other professionals.

According to the DOL, employers should first identify the occupation’s typical education and experience requirements using O*NET and then compare their job’s requirements to those norms. The comparison should include five key factors:

1. Experience required
2. Education required
3. Special skills or other requirements
4. Supervision received
5. Supervision exercised (if applicable)

The Department of Labor’s Prevailing Wage Determination Policy Guidance (Revised November 2009) establishes a structured point-based system for assigning the correct wage level. Every calculation begins at Level I (1 point), which represents the baseline, entry-level position. Employers then add points for each factor that exceeds the standard O*NET requirements for that occupation.

Once the total points are tallied, use the following chart to determine the appropriate wage level:

Example Application:
If an employer requires a master’s degree (above the usual bachelor’s), five years of experience (beyond the typical one to two years), and the role involves supervision (when supervision is not normal to the occupation), the job would total four points, corresponding to Level IV. Conversely, a role that mirrors O*NET’s standard requirements without added complexity would remain at Level I.

Starting at one point and adding for advanced factors provides a consistent, defensible framework aligned with the DOL’s official guidance—essential for responding to wage-level RFEs and avoiding DOL audit exposure.

Best Practices for Employers Filing H-1B Petitions
Employers filing H-1B petitions should begin by drafting a detailed job description that includes duties, minimum qualifications, education, years of experience, licenses or certifications, and supervisory scope. They should identify the correct SOC code using O*NET, determine the proper area of intended employment, and select the appropriate wage source. Using the DOL worksheet method, they should evaluate the position’s requirements to identify the correct wage level and retrieve the corresponding wage figure.

Common Prevailing Wage Mistakes to Avoid
Common pitfalls using an incorrect wage level, or relying too heavily on job titles rather than duties, which leads to mismatched SOC codes.

Conclusion: Building a Defensible H-1B Program
In today’s environment of heightened H-1B enforcement, determining the correct prevailing wage is not simply a procedural step—it is a foundation of lawful sponsorship. Employers who define the occupation carefully, identify the correct area of employment, use the appropriate wage source, determine the correct wage level, and maintain full documentation will minimize compliance risks and ensure the integrity of their immigration program.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with over 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has helped transform the firm from a solo practice to Houston’s largest immigration law firm focused exclusively on U.S. employment-based immigration.  She received her Bachelor’s degree in Biology from Central Michigan University and her Juris Doctorate degree from the University of Houston Law Center. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.