The process of securing a nonimmigrant visa in the United States, such as an H-1B or E-3 visa, involves numerous intricate steps, one of which is determining the appropriate Department of Labor (DOL) Wage Level for the adequate completion and filing of the Labor Condition Application (LCA). This critical factor of wage level selection plays a pivotal role in ensuring that the salary offered to a foreign worker aligns with prevailing wage standards for the specific job in a given location. More importantly however, it is necessary that the petitioning employer understand that the offered wage rate, alone, is not the sole factor to consider when assigning a wage level on the LCA.

In this article, we will explore the significance of selecting the correct DOL Wage Level, the factors that should be considered in the selection, the potential consequences of choosing an incorrect level, and delve into brief examples based on the DOL’s Prevailing Wage Determination Policy Guidance worksheet chart.

Understanding DOL Wage Levels

The U.S. Department of Labor classifies jobs into four wage levels (I, II, III, and IV), each reflecting different degrees of complexity and experience requirements taking into consideration experience, education, special skills and supervisory duties. The purpose of these wage levels is to establish a fair and standardized framework for determining the appropriate compensation for foreign workers. The emphasis lies on the foreign work him/herself, not the prevailing wage assigned to a specific level in the geographic location of intended employment. Meaning that, simply because the employer wishes to pay an offered wage that falls within a specific level, the foreign worker’s experience and education level may ultimately require the employer to raise the offered wage to fall within the more fitting wage level. 

Wage Level I: Entry-Level Positions (Entry Level Worker)

This wage level is typically assigned to employees who perform routine tasks that require limited, if any, exercise of judgment.  The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected.  Their work is closely monitored and reviewed for accuracy.
Job Characteristics: Typically entry-level roles with basic job duties and understanding of the occupation.
Education/Experience: Basic educational requirements and minimal experience.
Example: A junior software developer or intern seeking on the job training

Wage Level II: Positions Requiring Some Experience (Experienced Worker)

This wage level is typically assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment.
Job Characteristics: Roles that demand a moderate level of experience.
Education/Experience: Requires a bachelor’s degree and a few years of relevant experience.
Example: A software developer with a few years of experience.

Wage Level III: Positions with Moderate Complexity (Qualified Worker)

This wage level is typically assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained, either through education or experience, special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff.  They may have supervisory authority over those staff.
Job Characteristics: Roles involving moderate complexity in job duties.
Education/Experience: Typically requires an advanced degree and/or several years of experience.
Example: A senior software engineer.

Wage Level IV: High-Level Positions with Complex Duties (Fully Competent Worker)

This wage level is typically assigned to competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.
Job Characteristics: Senior or leadership positions with highly complex responsibilities.
Education/Experience: Requires advanced degrees and extensive professional experience.
Example: A lead software architect.

Importance of Correct Wage Level Selection:

It is important to remember that wage levels are determined only after selecting the most relevant O*NET­SOC occupational code classification. Selecting the correct DOL Wage Level is not just a procedural step; it is a fundamental aspect that can significantly impact the success of a visa application. If the offered wage is too low, it might lead to the rejection of the application. Conversely, if the wage is set too high, questions may arise regarding the accuracy of the information provided and the consistency of the same foreign worker being characterized as a Level 4 by one employer yet as a Level 2 for a new employer filing a transfer petition on their behalf. 

• Visa Denial: If the offered wage falls below the prevailing wage for the job, the visa application may be denied after the issuance of a request for evidence or notice of intent to deny from USCIS for further elaboration on the wage level assignment.
• Audit from the Department of Labor: Inconsistencies or errors in wage level selection may trigger an audit from the Department of Labor.
  • An example of such an audit can occur where the same foreign worker’s LCA has one wage level assigned at one employment location and a higher/lower wage level assigned at the second or third employment location. Even though the offered wage is the same, but falls into different wage level prevailing wage ranges at different locations, the foreign worker is the same and therefore carries the same wage level characteristics at each employment location where they are to perform the same job duties. Here, the DOL has full authority to contact the employer and inquire about the true wage level that should be intended.
• Impact on Reputation: Frequent errors or inconsistencies in wage level selection may raise suspicions and affect the company’s standing in future visa applications.

Examples Based on the DOL Guidance Worksheet[1]:

[1] Appendix B: Check Sheet for Use in Determining OES Wage Level, page 23-24 of https://www.flcdatacenter.com/download/npwhc_guidance_revised_11_2009.pdf

The “Appendix B” chart provided in the Prevailing Wage Determination Policy Guidance document serves as a valuable tool for employers to determine the appropriate wage level
based on specific job requirements. Though this guidance seems to apply to employers filing the prevailing wage determination ETA Form 9141, the same guidance should be considered for employers filing the LCA (Form ETA-9035) for Nonimmigrant visa petitions.

There are essentially 5 steps in determining a correct wage level. However, the first of which is most important, that employers must consider the wage level selection at the entry level or Level 1 Wage to begin their analysis. The employer shall then compare the job requirements of their offered position to the experience, education, training, and special skills, and supervisory duties generally required for an occupation as described in O*NET to complete the remaining steps.

Example 1: Junior Software Developer (Wage Level I)

Job Description: The role involves basic programming tasks and minimal experience requirements.
Education/Experience: A bachelor’s degree may be sufficient, and the candidate is likely to be a recent graduate.
Wage Level Selection: Wage Level I is appropriate, reflecting the entry-level nature of the position.

Example 2: Software Developer with Experience (Wage Level II)

Job Description: The position requires coding proficiency with a few years of relevant experience.
Education/Experience: A bachelor’s degree is necessary, and the candidate should have accrued several years of hands-on experience.
Wage Level Selection: Wage Level II aligns with the moderate experience and complexity associated with the role.

Example 3: Senior Software Engineer (Wage Level III)

Job Description: The role involves leading software development projects with a high level of complexity.
Education/Experience: An advanced degree and significant professional experience are essential.
Wage Level Selection: Wage Level III is appropriate, reflecting the advanced skills and experience required for the position.
Case Study: Lead Software Architect (Wage Level IV)

Example 4: A leadership position involving strategic planning and overseeing the entire software architecture.

Education/Experience: Requires advanced degrees and extensive experience in leading software development teams.
Wage Level Selection: Wage Level IV is fitting, given the high-level responsibilities and complexity associated with the role. Please note: If this position were to have been assigned a Manager ONET SOC Code such as First­Line Supervisors/Managers or General and Operations Managers (SOC Code 11-1021), the supervisor duties alone would not deem it at a Level 4 Wage as the supervisory duties are more entry level for such a role.

Conclusion

 In the intricate process of obtaining nonimmigrant visas, the selection of the correct DOL Wage Level is a key factor that demands careful consideration. Employers must navigate the intricacies of job descriptions, educational requirements, and experience levels to align with the standardized wage levels. Failure to do so may not only result in visa denials but also trigger audits and negatively impact the company’s reputation. By understanding the significance of DOL Wage Levels and utilizing tools such as the “Appendix B” chart, employers can enhance the accuracy of their visa applications and facilitate the smooth entry of qualified foreign workers into the U.S. job market.

Reddy & Neumann has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.

By : Jeanetly Garcia

Jeanetly Garcia advises employers and individuals through all phases of the non-immigrant visa process. As an attorney in the H-1B Department at Reddy Neumann Brown PC she is experienced in filing nonimmigrant petitions and applications for immigrant benefits, as well as, responding to USCIS issued requests for evidence concerning an array of legal issues.