Actual Wage Determination Worksheet And Memorandum For Lca File-(Fillable)
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1
2
3Instructions for Form 2 “Actual Wage Determination” and
“Memorandum for Labor Condition Application (LCA) File”
Before an employer can submit a petition to USCIS requesting H-1B status for a specific position on behalf
of a foreign national who needs the H-1B work benefit, US law requires the employer to document with the
US Department of Labor (DOL) via the LCA that the employee will be paid the “required wage”, which is
the higher of either the “pre vailing wage” or the “act ual wage”. The “ prevailing wage” for a position is
determined by the State E mployment Security Age ncy, aka State Wo rkforce Agency (SWA), in the
location of the employment. The “ prevailing wage” is based upon the position description provided to
SWA by the employer. The “actual wage” is determined by and documented by the employer. The “actual
wage” information is requ ired to be maintained by the employer in a f ile for DOL review. The “actual
wage” is the wage being paid to “comparable” employees. “Comparable” employees are those who now
hold the same job title and have similar education and experience as the foreign national to be hired.
To document the “actual wage”, the sponsoring MUSC department is required to list all employees (by
title, employee ID number and current salary) which are currently employed with the same job title and are
performing similar tasks as those described for the position to be filled by the foreign national. Then the
department must decide which of the listed employees are “comparable” to the applicant (see “comparable”
definition above).
If a current employee who holds the same job title is n ot considered as being comparable, the department
must provide legitimate business reasons why that employee’s wage level is not comparable to the foreign
national’s wage offer. If additional space is needed, departments may choose to develop a separate list of
all similarly employed individuals containing the required information and attach the list to Form 2. Do not
use employee names.
If the proposed salary on Form 1 Position Information is not equal to or
higher than the “required wage”, MUSC is not able to process an H-1B petition for this
position. The foreign national will not be hired in the MUSC position.
The DOL has ruled that only certain criteria may be used as legitimate business reasons related to
higher education to eliminate other e
mployees from comparison. (Please see additional
information for “actual wage” in the FAQ section and in the H-1B Petition Requirements and
Instructions for Filing.)
Valid criteria for stating that an employee is not comparable:
•
The current employee has more relevant work experience than does the foreign national
•
The current employee has more responsibility than the foreign national will have
•
When hired, the current employee had better educational credentials for the position than does the
foreign national or had a higher level of education than was required for the position
•
The current employee does not work the same number of hours as will the foreign national
Criteria determined by DOL to be invalid for determining employee comparability:
•
The instant position is funded by a different grant
•
The grant does not have enough funds to pay the “required wage” for the instant position
•
The current employee works in a different area of res earch/teaching/patient care within the
department than will the foreign national
•
The current employee demanded more salary when hired
•
A salary freeze (past or present) has caused or is causing a different wage to be offered
Return the completed Form 2 Actual Wage Worksheet and Memorandum to the Labor Condition
Application (LCA) File to the Office of International Support in Room 454-Harper Student Center. If
you have any questions regarding the “actual wage” determination, please contact us at 792-3714.
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