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 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 of 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.
How the Prevailing Wage is Determined
The NPWC considers several factors when determining the appropriate prevailing wage for every job offer. All prevailing wage determinations start with an entry-level worker wage and progress to a wage payable to a qualified, experienced, or fully competent worker using the required education, experience, and skills in the employer’s job description for the position. They will also use these three key elements: the nature of the job offer, the area of intended employment, and the job duties for employees that are similarly employed.
Nature of the Job Offer
The nature of the job offer will be determined by reviewing the requirements of the employer’s offer to arrive at the appropriate occupational classification for the position. The NPWC will use the Occupational Information Network (O*NET) description that corresponds with the job offer to identify the appropriate occupational classification.
Area of Intended Employment
According to the DOL, the area of intended employment means the area within the normal commuting distance of the address of the intended employment. This means the wage that is appropriate using the current wage rate in that geographic location. The NPWC uses the On-Line Wage Library to determine this.
Similarly-Employed
This refers to the average wage paid to workers in comparable jobs within the area of intended employment. If there are no comparable jobs in that area, the NPWC will use the prevailing wage paid to workers for similar jobs outside the area.
Which Employment Visas Require a Prevailing Wage?
Almost all employment-based visa applications require a PERM prevailing wage determination by the NPWC. Although, in some of these cases, an employer may be allowed to determine the prevailing wage independently when processing their Labor Condition Application, it’s usually best to obtain it from the NPCW before starting the recruitment process. Examples of these include the H-1B, H-1B1, and E-3.
However, you may not be allowed to file the H-2B Temporary Labor Certification and the Permanent Labor Certification applications without getting a prevailing wage determination by the NPWC. However, it is worth noting that the NPWC does not issue a prevailing wage for H-2A visas. The employers have the prerogative to determine the wages for themselves.
Prevailing Wage Process in 2020
Since June 10, 2019, the NPCW has been accepting online submissions of the ETA-9141 form in the Foreign Labor Application Gateway (FLAG) System. Employers can choose any of the following to determine the prevailing wage for employees such as H-1B, H-1B1, and EB-3 workers:
- Request a prevailing wage determination from the NPWC;
- Use a survey conducted by a private authoritative source; or
- Use another legitimate source of information.
Benefits of Obtaining Prevailing Wage from the NPWC
While employers may sometimes have the option of using other sources, it is best to use the NPCW, as it helps avoid potential future problems with the recruitment process. When the prevailing wage is issued by the NPWC, employers are given “safe-harbor status.” With this status, if the company is investigated at any time for wage compliance, the prevailing wage will not be challenged by the Department of Labor’s Wage and Hour Division. Bear in mind that the same guarantee may not exist for other sources.
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.
Why Employers Should Obtain Prevailing Wages Before Recruitment Process
For many reasons, it pays to obtain prevailing wages first even if you have the option of processing it during the recruitment exercise. One of the reasons is to ensure accuracy in the process, as it may be difficult to predict the turnout of events along the line. For instance, if an employer uses a wage believed to be prevailing wage determination (PWD) and the actual PWD turns out to be higher weeks or months afterwards, the employer may have to restart the whole recruitment process from the beginning.
Timing is another reason for getting the PWD before the recruitment process because the PWD is only valid for a limited period. If the recruitment begins before obtaining PWD, the PERM Labor Certification must be submitted within the given validity period of the PWD. In a situation where the employer cannot complete the recruitment before the expiration of the PWD, they may need to start the entire process over again.
The above scenarios could cause a major setback in the entire PERM application process. Apart from the time wasted in reviewing applications and conducting interviews for applicants, the money spent on things such as job advertising will also be lost.
Is the Prevailing Wage the Same as Minimum Wage?
No. Prevailing wage, minimum wage, and living wage are all different and serve different purposes. Many employment-based visa applicants mistake the above terms commonly used in the United States labor market.
As a foreign worker using the PERM labor application, what you are entitled to is the prevailing wage, which is what other employees working a similar position earn in your area of employment.
The minimum wage, on the other hand, is the lowest rate pay an employee is allowed to be paid. There is a mandated minimum wage by the federal government. Apart from this, there are also 45 U.S. states with their own minimum wage rates. The DOL allows employers in those states to choose the higher of the two wages for their employees.
What If My Employer Is Not Paying the Right Prevailing Wage?
If you suspect that your employer has not been paying you the correct prevailing wage, you may file a complaint to the DOL. However, it is best to be certain that there truly is an error before filing a complaint. You can do this by contacting the DOL’s Work and Hour Office, which will guide you through the process. The complaint is free of charge and it is also confidential. After receiving your complaint, an investigation will be carried out and you will be informed on the findings and decision after the investigation.
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.
