The actual wage is to be the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question.
The DOL requires that, for an LCA, the employer document how it calculated the actual wage for the specified occupation. The system should consider all other individuals with similar experience and qualifications for the specific employment in question. In determining the actual wage rate, DOL allows for the following factors to be considered:
- Experience (length, type), qualifications (particular skills, training, licensures);
- Job responsibility and function (supervisory role, exercise of discretion, demonstrated decision-making ability);
- Specialized knowledge (knowledge of employer’s product or procedures, particular foreign and/or domestic products, competitor’s products); and
- Other legitimate business factors (DOL defines legitimate business factors to be those that are reasonable to conclude are necessary because they conform to recognized principles or can be demonstrated by accepted rules and standards.
- When utilizing a specific pay system to calculate wages for a position, the DOL requires a memorandum of the company’s pay system. Please see below.
- When not utilizing a pay system to calculate wages for a position, please complete the actual wage worksheet. Please see below.
Actual Wage Memorandum
This memorandum must be kept in the public disclosure file and be readily available with the other compliance documentation. DOL requires that a full, clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation for which the H-1B non-immigrant is sought including any periodic increases which the system may provide.
Please keep in mind that this memo should be a summary of the wage/pay system the company used. It should include the occupational title, education, experience level, other relevant factors, and salary level for each worker included in the pool of similar employed workers. The factors used within the company’s pay system should not deviate too much from those in which DOL provides. The memo does not need to arithmetically apply the system to the H-1B non-immigrant’s salary (the actual wage)
Where adjustments are made in the employer’s pay system or scale during the validity period of the LCA, the employer shall retain documentation explaining the change and clearly showing that, after such adjustments, the wages paid to the H-1B non-immigrant are at least the greater of the adjusted actual wage or the prevailing wage for the occupation and area of intended employment.
Actual Wage Worksheet
The actual wage worksheet can be used as both the method utilized to calculate the actual wage and the actual wage memorandum. The actual wage worksheet should be placed in the public disclosure and be readily available with the other compliance documentation.
You may wish to utilize our sample worksheet for use in determining the actual-required wage for the specific employment in question.
REQUIRED WAGE RATE:
The employer may pay H-1B non-immigrants more but not less than the higher of the actual or prevailing wage rate.