On August 3, 2015, the U.S. Department of Labor (DOL) implemented an important policy change advocated by stakeholders which will substantially reduce the amount of time that it takes for certain physicians and other highly compensated professionals to obtain H-1B status.
The H-1B process requires employers to obtain an approved Labor Condition Application (LCA), supported by evidence that the employer will pay at least the prevailing wage to the H-1B employee for the geographic location. Employers can document the prevailing wage by referencing a DOL-acceptable wage survey. The most commonly relied upon wage survey utilized in H-1B petitions is the DOL’s Online Wage Library (OWL). Where the OWL provides wage data for a particular location and occupation, employers can opt to rely upon this data and proceed with obtaining the LCA for the H-1B process which cuts off a two-month period the employer would otherwise have to wait for DOL to issue a prevailing wage determination (note: OWL data does not provide an employer “safe harbor”). However, for some highly compensated occupations, the OWL does not provide any wage data. This is particularly common for physician positions, even in major metropolitan areas. When OWL lacks data, employers either have to wait two months for DOL to issue a prevailing wage determination or submit an alternative wage survey that complies with DOL’s strict regulations. The frustration was that, after waiting two months for DOL to process the prevailing wage request, practitioners knew that DOL would simply assign a predetermined wage of $90/hour, or $187,200 per year as the “default” wage.
For many years, even where employers were willing to accept this default wage, waiting two months for the prevailing wage determination was still a practical necessity because DOL did not allow employers to simply list $90/hour on the LCA without first obtaining the prevailing wage determination. Effective immediately, however, DOL will now allow employers to cite the default $90/hour wage on LCAs as a legitimate wage rate in OWL without having to first submit a prevailing wage determination request and wait two months. This change promises to significantly accelerate the H-1B process for these affected physicians by removing an unneeded bureaucratic step in the process, and SPS Immigration PLLC applauds the DOL’s receptiveness and common-sense improvement to the LCA process. Healthcare employers who may be affected by this change or who have questions about the H-1B process should contact SPS Immigration PLLC to discuss their specific situation.