Considerations for DOL Wage Surveys

When a U.S. employer wants to hire a foreign worker through a work visa program, such as the H-1B program, they are required to demonstrate that they will pay the foreign worker at least the “prevailing wage” for the occupational classification in the geographic area where the work will be performed. This prevailing wage is typically determined based on wage surveys conducted by the U.S. Department of Labor (DOL).

In some cases, employers may be able to use private wage surveys (conducted by private organizations or entities) to determine prevailing wages instead of relying on the DOL's published data. This can be a complex process, and employers must adhere to specific guidelines set by the DOL. Private wage surveys must meet certain standards, and the methodology used in the survey must be submitted for review to ensure its accuracy and reliability.

Since private wage surveys can be subject to additional scrutiny, here are some considerations for companies enlisting a private organization’s help to determine prevailing wage rates:

Risks Involved:

• Consult your immigration legal team or any immigration experts before requesting private wage surveys for immigration matters.
• While private wage surveys are an alternative to DOL wage data, nuances exist, and an experienced immigration attorney is best equipped to provide guidance.

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Existing Vendors or Subscriptions:

• Inform your legal team if your company uses a wage survey provider for internal compensation decisions.
• Your immigration counsel will assess the suitability of this survey provider for immigration matters.
• If your company doesn't have a subscription, your legal team can help identify an appropriate survey provider if needed.

Costs:

• Subscribing to a survey provider and obtaining individual survey reports will result in additional fees.
• Employers with existing subscriptions may minimize costs.
• Work with your legal team to identify upcoming immigration matters (e.g., green card adjustment of status cases, H-1B transfers or renewals) to strategically request and reuse survey reports, reducing overall expenses.

Timing:

• Be mindful of additional timing considerations when requesting a private wage survey.
• Once job details, agreements, and payments are finalized, and the survey is requested, expect several business days to receive the report before filing the Labor Condition Application (LCA) or Prevailing Wage Request.
• Factor in an extra 1-2 weeks beyond normal processing times for cases using a private wage survey to accommodate these steps.