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The PERM prevailing wage is in place to ensure employers pay their employees the minimum wage for that particular job. The prevailing wage is a part of the PERM labor certification. USCIS requires employers to acquire it on behalf of the foreign worker seeking to reside permanently in the United States. The organization responsible for determining this, National Prevailing Wage Center (NPWC), bases its determinations on data gathered throughout the United States. We’ll go over commonly asked questions including prevailing wage determination validity period, processing time, requirements, and more.
The PERM is a labor certification that the Department of Labor (DOL) uses to help protect U.S. citizens’ jobs and working conditions. It does this by having employers go through an intensive recruitment process to ensure that no qualified U.S. workers are available for the position in the area. The prevailing wage determination is the other way PERM protects U.S. workers. The DOL defines the prevailing wage as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.” The prevailing wage is the employer’s lowest wage to pay the beneficiary for the job they intend to perform. This is not the same as a state or federal minimum wage.
DOL determines a prevailing wage based on others in the geographic area that fill the same role with similar qualifications.
So, for example, if digital marketing managers in Louisville, Kentucky are making a certain amount on average, the DOL will use that to determine a prevailing wage for that job in that area.
Not only must the employer agree to pay the beneficiary at least this wage, but the employer must also show that they are financially capable of paying this wage. Employers can do this through income and bank statements and evidence of the salaries of similar workers in the organization.
For the H-1B, H-1B1, or EB-3 programs, employers need to pay the higher of the prevailing wage or the wage they pay other workers in the company with similar skills and responsibilities.
In addition, EB-2 applicants can avoid the prevailing wage determination if USCIS grants them a National Interest Waiver. A NIW petition permits a foreign national to self-petition and bypass the customary route which includes getting a permanent job offer and the accompanying labor certification. With an NIW you essentially get to skip the labor certification requirement in light of the “national interest for the U.S.”
The prevailing wage determination processing time can take as little as a few weeks to over two months to be determined by the DOL. After that, the employer must run advertisements for the job for at least 30 days before waiting an additional 30 days for potential applicants to respond for a total of at least two more months for recruitment.
After the recruitment period, form ETA 9089, Application for Permanent Employment Certification, can be filed, taking the DOL six months or more to process. However, receiving an audit or being issued supervised recruitment can delay your processing up to and over nine more months.
Therefore, the total prevailing wage determination processing time can vary wildly. However, the bare minimum will be about eight to nine months. On the higher end, you might expect it to take as long as two years if DOL audits your case.
There are very stringent requirements the employer must follow for PERM labor certification.
The employer can request that the DOL base the prevailing wage determination on a private wage survey in specific scenarios. It’s best to consult an immigration attorney with experience handling private wage surveys to explore this option.
To demonstrate the importance of filing the PERM petition within the prevailing wage determination period, here’s an example:
Company X intends to file a labor certification for Mr. Jones. Company X runs an ad for the PERM position one day before receiving their prevailing wage determination. The remaining ads are run during the prevailing wage validity period, but they expire one day before Company X submits the PERM petition. Due to faulty timing, the case will be denied because they did not begin recruiting or file the petition at the right time.
Company X could have improved this situation had it started the recruitment process and/or filed the PERM petition during the validity period. It likely would have been approved had these been the circumstances. Again, it’s ideal to work alongside a knowledgeable attorney who has experience with PERM prevailing wage determination to avoid any delays or denials like this.
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The PWD validity period is valid from 90 days to a year. PWDs issued between April 2nd and June 30th are valid for 90 days while those issued after June 30th are valid through June 30th of the following year.
However, as soon as the employer gets the prevailing wage designated by the center, the employer must submit the recruitment file and PERM Labor Certification within the validity period.
What if the employer starts advertising while the prevailing wage determination is pending?
If that’s the case then the PERM application must be submitted by the exp. date of the prevailing wage determination or by the date the advertisement expires (whatever date is sooner).
What if all the advertisements start after the prevailing wage determination is issued?
If that’s the case, then the PERM must be submitted by the expiration date of the advertisements.
Applicants can find wages by submitting a request to the NPWC. Alternatively, you can find the wage date on the Foreign Labor Certification Data Center Online Wage Library for the prevailing wage determination.
Employers can either request it from the NPWC, get the data by having an independent source conduct a survey, or use another official source of information like the Online Wage Library. The System for Award Management website is also a valuable source for getting started with the prevailing wage determination process.
Can I speed up the PERM with premium processing?
Unfortunately, premium processing is only for employment-based immigrant and nonimmigrant visa petitions (those that use the I-129 and I-140 forms). Therefore, you cannot use it to expedite the PERM process. Consult your immigration attorney about the most up-to-date PERM processing time in 2021.
How long does it take for the DOL to process a PERM application?
If you opt for the electronic route and include the audit adjudicating process, the DOL estimates that a clean application takes fewer than sixty days to complete. The time for audited cases may vary depending on DOL’s requests. While we can’t say for sure how long your processing will take, it should be around 60-90 days.
What is the PERM “quiet period?”
The 30-day “quiet period” is when the employer must give U.S. workers to respond to the recruitment efforts. After the job advertisements have been placed and posted, the employer must wait 30 days before filing the ETA 9089. However, if the position is considered a professional occupation, the employer may choose to have only one of the three recruitment mediums during the 30-day quiet period.
What is the 30-day hold period?
The 30-day hold or ‘quiet’ period is the time frame after completing most recruitment and filing the application. Once an employer files a PERM labor certification, they must wait 30 days for any additional job applications to come in.
Is there a fee for the PERM?
There is no fee tied to the ETA 9089. However, the employer will most likely encounter costs when posting job advertisements during the recruitment process.
What documents are required for PERM labor certification?
You’ll need a local Labor Market Analysis (evidence that U.S. workers are incapable/ineligible of performing this employment). This includes job orders, newspaper ads, prints of website job ads, U.S. Employer Audit File, immigrant petition, and completed Form ETA 9089.
What is the process for non-professional jobs?
To satisfy these requirements, the employer must first place a job order with the state workforce agency and place an ad in 2 consecutive Sunday editions of a local newspaper.
What happens after filing ETA Form 9089?
After submitting this form, you’ll have to wait a few months for the DOL to adjudicate the PERM. From there, they can either approve the PERM, deny it, or conduct an audit. If DOL initiates an audit, they will ask the employer to submit additional forms of evidence. Since this can become burdensome, we advise to seek an immigration attorney.
What if the employer finds qualified applicants in the U.S.?
If during recruitment, the employer can find willing and able U.S. workers and they accept the position, then the PERM application will end at that point. Later, if the employer chooses, they can restart the PERM process.
What happens if the prevailing wage is incorrect?
If this happens then it will most likely like to an audit or worse yet a rejection. For that reason it is highly advised to work with a qualified immigration attorney.
Both employees and employees need to take the necessary time to review the PERM form during the filing process. VisaNation Law Group PERM immigration lawyers can assist you in meeting the strict government deadlines and filing any necessary documents. In addition, if you receive a request for an audit, we will prepare and submit the paperwork promptly.
The PERM process can be complex, and either an audit or supervised recruitment can set you back in your timeline. Therefore, doing it right the first time and avoiding easy-to-make mistakes can save you time, effort, stress, and money. That’s why it’s best to have an immigration attorney help you through the entire process and give you a relevant idea of PWD processing time in 2023. Then, with a professional by your side, you can rest easy knowing you have the best chances of a speedy and stress-free PERM process.
VisaNation Law Group offers consultations to individuals/businesses looking to retain a law firm to apply for employment-based or investment-based immigration petitions. If you have more concerns about PERM prevailing wage determination, you can contact us by filling out this consultation form.