A specialty occupation is defined as one that requires, “theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s or higher degree, or its equivalent, is a minimum requirement.” HRM will work with the hiring/employing unit to determine if a particular position would be considered a specialty occupation.
The University must pay an H-1B employee the required wage, which the U.S. Department of Labor defines as the higher of two figures: the “Actual Wage” OR the “Prevailing Wage”.
The Actual Wage
The actual wage is the wage rate paid by the hiring unit to all other individuals with qualifications and duties similar to those of the H-1B beneficiary for the specific employment in question. The “hiring unit” is typically the most meaningful unit for comparison. In determining the actual wage, the hiring unit may take into consideration objective factors including experience, education, job responsibility and function, specialized knowledge, and other legitimate business factors.
When there are employees in the hiring unit with qualifications and duties similar to the H-1B beneficiary, the actual wage is the amount paid to these other employees; this can be expressed as a range. When there are no other employees in the hiring unit with qualifications and duties similar to the H-1B beneficiary, and there is no other unit that offers a good comparison, the actual wage is the salary offered to the H-1B beneficiary.
The Prevailing Wage
The prevailing wage is a U.S. Department of Labor calculation of the average wage rate paid by employers to similarly-employed workers in substantially comparable jobs in the geographic area of intended employment. If there are no substantially comparable jobs in the area of intended employment, the prevailing wage is the average wage paid by employers to similarly-employed workers outside of the area of intended employment. Prevailing wage determinations (PWDs) are based on many factors (e.g. geographic location of the worksite, discipline, job duties, title, position requirements, required educational level, required work experience, supervisory responsibilities, etc.) including the fact that the employer is a university. The Department of Labor collects national salary wage data annually; therefore, prevailing wage amounts fluctuate from year to year.
U.S. Government Agencies Involved
HRM will request certification of the Labor Condition Application with U.S. Department of Labor and will prepare and file the necessary immigration petition with USCIS (United States Citizenship and Immigration Services. USCIS is the final decision making authority makes the final decision as to whether the individual and position qualifies for the H-1B status. HRM prepares and files the H-1B petition with USCIS for consideration and adjudication.
Each H-1B petition is specific to the details filed in the petition, this means that each USCIS approved petition that was submitted by HRM authorizes the employee to work only for KU in the position and worksite location specified by the petition. An individual who has an H-1B approved from another employer is not eligible to work at KU until a new H-1B petition has been filed by KU.
If you intend to change any of the terms of an H-1B employee’s work (i.e. salary, FTE status, worksite location, duties, requirements, etc.) an amended H-1B petition may need to be filed BEFORE any change can occur to an H-1B employees terms of employment. Please contact HRM if you anticipate any future changes.
HRM is the office designated to handle employer-sponsored immigration matters for The University of Kansas. HRM will work with KU hiring/employing departments and their international employees to prepare H-1B petitions. HRM handles the necessary actual and prevailing wage documentation, the Labor Condition Application ETA 9035, notification to U.S. workers, the public inspection file, and the petition filing with USCIS and all case related correspondence with relevant government agencies. If USCIS approves the H-1B petition, the approval notice documentation (Form I-797) will be mailed to HRM. HRM will provide Form I-797 directly to the employee.
For hiring/employing unit instructions on how to initiate an H-1B application, please contact Keeli Nelson firstname.lastname@example.org in HRM.
All costs associated with the H-1B petition preparation and filing must be paid by the employing/hiring unit at KU and cannot be paid by or passed on to the H-1B employee in any way (i.e. they cannot be deducted from the salary or start-up funds of an H-1B employee). For information on related costs please see H-1B Case Preparation & Filing Fees