PERM Prevailing Wages
On the long road to a green card, the first step for those who wish to go through employment is usually having their employer obtain a PERM Labor Certification on their behalf. Part of this process involves determining the PERM prevailing wage that you should be paid. If you are wondering how this wage is calculated, then this is the article for you.
PERM Overview
If you are pursuing an employment-based green card, before you start filing any petitions, you will first need to find a U.S. employer that is willing to sponsor you for your visa. Then, that employer needs to work with the Department of Labor to obtain a PERM Labor Certification on your behalf.
The PERM is simply a process that the DOL put into place to prevent U.S. employers from using the immigration system to take advantage of the local American workforce. This means having your employer go through an extensive recruitment process in order to determine if any qualified U.S. workers are able to fill the position that you are filling.
Your employer will need to post the position as a job order on the State Workforce Agency for at least 30 days. The position will also need to be posted in 2 Sunday editions of a large local newspaper consecutively. Lastly, your employer will need to utilize at least three of the following methods for recruitment:
- Job fairs
- Employer’s website
- Job search website other than your employer’s (e.g. monster.com, indeed.com)
- On-campus recruiting
- Trade or professional organization
- Private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television
Overall, the PERM is designed to protect U.S. workers and to ensure that employers are not taking advantage of the immigration system to hire foreign labor at a reduced salary. Therefore, the prevailing wage must be determined and paid to the immigrant employee in order to qualify for a PERM.
PERM Prevailing Wage
A fundamental part of the PERM process involves obtaining a prevailing wage determination from the U.S. Department of Labor (DOL). All prevailing wage requests are submitted directly to the DOL using form ETA 9141.
The PERM prevailing wage is defined by the DOL as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment”. This means that it will take several factors into account when determining the prevailing wage for your position.
According to the Immigration and Nationality Act (INA), the presence of foreign workers in the U.S. cannot be considered detrimental to their American peers. This means that, because a common form of foreign labor exploitation is lower wages, the prevailing wage must be determined and paid to the foreign national so that hiring said national will not adversely impact other U.S. workers.
In many cases, the DOL will use its Online Wage Library (which is based on the Occupational Employment Statistics (OES) survey) to determine the PERM prevailing wage. (OES database). The center also determines the wage by matching the offered position with the following:
- Geographic Location
- Skill-Set
- Education
- Experience
- Required Supervision
Therefore, the prevailing wage for a software engineer in Canton, Ohio may be very different for a software engineer in San Jose, California. Likewise, a systems analyst for a startup and for a corporate giant will also differ, even if they are in the same location. Your immigration attorney can help you get a better idea of what the prevailing wage for the position will be.
An employer can also request that prevailing wage determinations be based on an approved private wage survey. The private survey is required to meet several Department of Labor regulations.
In order to receive the determined PERM prevailing wage, your employer can request it via mail or through the iCert online application system. Here is the mailing address:
U.S. Department of Labor
Employment & Training Administration
National Prevailing Wage and Help Desk Center
ATTN: PWD Request
1341 G Street, NW – Suite 201
Washington, DC 20005 – 3105
Payment of the Prevailing Wage
In PERM cases, the employer is only required to pay the prevailing wage to the foreign national once the foreign national becomes a permanent resident of the U.S. It is important to note, however, that when the employer files the second stage of the green card case (the I-140, Immigrant Petition for Alien Worker), the employer will be required to document that it had the ability to pay the proffered wage as of the date upon which the PERM application was filed.
Before the PERM application is undertaken, it is important to make sure that the employer has a viable business and is able to pay the proffered wage. This can be proven by providing financial documents such as bank statements or tax documents. An inability to prove that the employer can pay the prevailing wage is one of the major causes for a PERM denial. The labor certification application must offer 100% of the prevailing wage for the position. You are permitted to offer the foreign worker more than the prevailing wage, but you cannot offer less.
PERM Prevailing Wage Validity Period
Because the U.S. economy changes frequently, the prevailing wage is only valid for a limited amount of time. In total, the PERM prevailing wage is valid for at least 90 days. Once the employer receives the prevailing wage designated by the center, the employer is required to submit the recruitment file and PERM Labor Certification within the validity period. The prevailing wage generally changes every year, so an old prevailing wage could prove disadvantageous to current employees. If the employer fails to submit the documents within the allotted time, the employer is obligated to resubmit and request a new prevailing wage determination.
Here is an example:
Widget Inc. wants to sponsor Mr. Patel for an employment-based green card, so they file a PERM Labor Certification for him. Unfortunately, Widget Inc. runs the job ads too late and begins the recruitment process long after the prevailing wage determination arrives. If the prevailing wage determination expires before Widget Inc. can file Mr. Patel’s PERM petition, then the petition will be denied and the process will have to be re-done.
This example, while fictional, serves to show that the timing is important when it comes to the entire PERM process. One of the best ways to ensure that the process is proceeding the right way is to retain the services of a qualified immigration attorney who specializes in employment-based green cards.
If the prevailing wage determination is intended for the PERM Labor Certification petition, the recruitment efforts must be completed within the 90 day period before the filing of the PERM application.
What If The Prevailing Wage is Wrong?
If the employer either misunderstands the prevailing wage determination or purposefully chooses to pay a wage that is less than the PERM prevailing wage, there is a high likelihood that the DOL will perform a targeted audit of your case. This means that all of the recruitment information including information about the prevailing wage and its determination must be submitted to a certifying officer who will evaluate the recruitment process thoroughly. If it is found that an employer has attempted to pay the immigrant employee less than the prevailing wage (or if the employer posted compensation that was lower than the prevailing wage to deter potential U.S. applicants), then the PERM application will likely be denied.
Additionally, denial under these circumstances may have an impact on future PERMs that the employer files. This could lead to having the DOL impose supervised recruitment on the next application, meaning that the employer will need to submit all documentation for the recruitment while the recruitment is taking place.
While you still may be audited randomly (the DOL performs random audits to maintain the integrity of their system), you can protect against targeted audits by adhering to the rules surrounding the PERM prevailing wage.
How Our Immigration Attorneys Can Help
As an employer, you likely understand the value of expertise. Getting something right the first time is always preferable to trial and error. When it comes to filing a PERM and determining the prevailing wage, it pays to be informed. Hiring an expert immigration attorney can save you time, money, and effort in your recruitment process, especially if you file multiple PERMs each year.
Our immigration lawyers have an extensive track record of helping people use the PERM process as their first step on the road to lawful permanent residency. Specializing in employment-based immigrant and nonimmigrant visas, our expert attorneys will guide you and your employer through the process step by step in order to ensure that you have the best chance of approval and to help you avoid common pitfalls such as targeted audits.
To get in touch with one of our PERM attorneys, you can simply fill out this contact form and schedule your consultation today.