by Brian S. Green
Is DOL Using H-1B Filings to
Find Wage Leveling Violations?
t is three days before the annual H-1B cap. You
are preparing your cases carefully, hoping that all
your filings are approved. Do you stop to consider
that several years later, an investigator from the U.S.
Department of Labor (DOL) Wage and Hour Division may use your H-1B filing as proof of wage "leveling" violations? Of course not! But this is part of an
ongoing trend where DOL investigators are auditing
H-1B employers and making their own judgments,
sometimes incorrectly, about what wage levels should
have been chosen when labor condition applications
(LCAs) were originally submitted.
In a recent investigation and decision, Administrator
v. Sirsai, Inc., ALJ No. 2011-LCA-001 (July 27, 2012),
DOL looked to H-1B petitions filed under the annual
master's degree cap as evidence that a master's degree
was required for the sponsored position. Specifically,
investigators reviewed "petitioner letters" submitted
with H-1B petitions for any indication that a master's
degree was required or that the beneficiary's educational achievements were the minimum requirements for
the H-1B specialty occupation. Sirsai, at 8–10.
Instead of viewing the master's degree cap as an
incentive for foreign students to invest in graduate
degrees in the United States, DOL is seemingly stating that H-1B petitions submitted for the additional
20,000 H-1B numbers allotted annually under INA
§214(g)(5)(C) must be based on LCAs classified at
wage levels 2 and above. The idea that an H-1B worker could possibly be overqualified for a wage level 1
position, or that tough economic times could lead
workers to take entry-level positions, is not given sufficient consideration.
Investigators Focus on
Qualifications, Not Requirements
In a brief recently filed in Sirsai with the Administrative Review Board (ARB), attorneys for DOL defended DOL's investigators' practice of assessing wage
levels based, in part, on workers' qualifications, education, and experience. While DOL casually mentioned
education or experience requirements, the agency fo-