INS Memo on Ability to Pay the Prevailing Wage in H-1B Cases

Office of Adjudications (HQADN)

HQ 214h-C

08 JUN 1995

Ability to Pay the Prevailing Wage in H-1B Cases

All Center Directors
Director, Service Center Operations
Director, Administrative Appeals Office

A number of Service Centers have been exploring the possibility of requiring that petitioners in H-1B cases establish their ability to pay the prevailing wage as listed on the supporting labor condition application (LCA). This office has asked the Office of General Counsel to provide an opinion addressing the legality of this practice. The preliminary opinion of the General Counsel is that the only responsibility which the Service has in this area is to ensure that the petitioner has obtained a certified LCA and that the Service has no statutory authority to question the veracity of the information furnished on the LCA. That responsibility lies within the jurisdiction of the Department of Labor (DOL).

Based on the foregoing, it is suggested that officers involved in the adjudication of H-1B petitions do not question the information provided on the LCA or question the ability of the petitioner to pay the prevailing wage. The Service may, however, act as an aggrieved party to the LCA process and provide information to the DOL regarding possible violations of DOL regulations. The DOL has advised, however, that is will not investigate prospective violations. Field offices will be furnished with a copy of the General Counsel's opinion when it is completed.

Should there be any questions concerning this memorandum, please contact Adjudications Officer John W. Brown at 202-514-3240.

John W. Brown
Acting Chief,
Nonimmigrant Branch