For all employment-based visas and most green cards, the first step is having a U.S. based employer obtain a PERM Labor Certification on their behalf. Part of this process involves the PERM prevailing wage determination, a minimum wage that must be paid to employees hired from abroad. If you are wondering how this wage is calculated, the timeline, and how to check PWD status, dive into this guide!
What Does Prevailing Wage Mean?
The PERM prevailing wage determination is a minimum wage set by the U.S. Department of Labor for a specific job in a particular geographic area. Its purpose is to ensure that hiring a foreign professional does not negatively affect the wages of U.S. workers.
- Requests are submitted through the Foreign Labor Application Gateway (FLAG) system.
- Employers or their authorized attorneys or agents file Form ETA-9141, the Application for Prevailing Wage Determination.
- The Bureau of Labor Statistics provides wage data available on the OFLC Wage Search page for informational purposes
What Is Its Purpose?
The Immigration and Nationality Act (INA) developed the prevailing wage requirement and PERM process to protect U.S. workers with a few key principles:
- No Adverse Impact: The presence of foreign workers cannot be detrimental to American workers.
- The Prevailing Wage Requirement: To prevent wage exploitation—a common issue—the law requires the government to determine the average local wage (the “prevailing wage”) for a specific job.
- The Outcome: Employers must pay foreign workers this prevailing wage, which removes the incentive to hire them at a lower salary and ensures U.S. workers are not disadvantaged.
How is The Prevailing Wage Determined?
The prevailing wage is determined by the Department of Labor using these primary factors:
The Job (Occupation)
This specifies the employee’s exact role based on their primary duties and responsibilities. The wage is determined by matching these duties to a specific government-defined occupation, such as “Software Developer” or “Marketing Manager.” This is a critical step because the actual tasks performed are more important than the job title itself.
The Location (Area of Employment)
The cost of living and local market rates mean a job in one geographic area will be different than another. For example, New York City will have a much higher prevailing wage than the same job in Omaha, Nebraska.
The Skill Level (Wage Level)
The government sets four distinct wage levels for each occupation to account for seniority and complexity:
- Level 1 (Entry): For beginners who perform routine tasks under close supervision.
- Level 2 (Qualified): For employees with a good understanding who perform moderately complex tasks.
- Level 3 (Experienced): For seasoned employees with a strong understanding and specialized skills, who may have some supervisory duties.
- Level 4 (Fully Competent): For experts who are fully competent, handle complex tasks, and often lead or supervise others.
Education Level
The Department of Labor factors education, particularly when a role requires a specific level of education.
For example, a Neurologist requires a Doctorate (PH.D), which will factor into the prevailing wage determination.
PERM Prevailing Wage Calculator- How to Figure Out The Right Amount
To determine the correct wage for the prevailing wage determination, you must submit a formal request using form ETA-9141 to the U.S. Department of Labor (DOL) through the FLAG system.
PERM Prevailing Wage Calculator
However, for an accurate estimate, employers or employees can use the PERM prevailing wage calculator using the OFLC Wage Search tool, which is based on the Occupational Employment Statistics (OES) survey.
The above example shows the prevailing wage determination results for a marketing manager from Memphis, Tennessee. The prevailing wages differ based on the experience level:
- An entry-level marketing manager in memphis must be paid a prevailing wage of $84,843
- An experienced level 4 marketing manager must be paid $176,301.
Alternative Methods to Obtain the Prevailing Wage
For the H-1B, H-1B1, and E-3 programs, employers have the option of using one of three wage sources to obtain the prevailing wage:
- Requesting a prevailing wage from the NPWC;
- Using a survey conducted by an independent, authoritative source; or
- Using another legitimate source of information.
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.
How to Request a Prevailing Wage Determination
To receive the determined PERM prevailing wage, your employer can request it through one of two methods:
- Through the Foreign Labor Application Gateway (FLAG), a modern, user-friendly system for submitting labor certification and prevailing wage applications and communicating with OFLC throughout the application process.
- Via mail using the following mailing address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
National Prevailing Wage Center
200 Constitution Ave NW, Room N-5311
Washington, DC 20210
How Long is a Prevailing Wage Determination Taking?
The processing time for prevailing wage determinations is approximately 3-4 months, according to the Department of Labor Data.
You can find the latest data using the FLAG processing times tool
- Look under the Processing Queue to find your visa category
- Then, look at the OEWS receipt date column, which tells you the month and year of the applications that the government is currently working on.
- The vast majority of standard applications use the OEWS wage data, making this the most accurate column for general cases.
Payment of the Prevailing Wage
The legal duty to pay the prevailing wage begins the moment the employee is authorized to work in the specific job sponsored by the PERM application. The timing depends on the employee’s location:
- For those adjusting their status within the U.S., this is typically upon receiving work authorization (an EAD card) associated with their final green card application.
- For those abroad, it begins upon entering the U.S. with an immigrant visa.
Ability to Pay” Requirement (The I-140 Stage)
While the actual payment comes later, the employer’s financial ability to pay the wage is scrutinized much earlier.
During the I-140 (Immigrant Petition for Alien Worker) stage, the employer must prove they can pay the prevailing wage continuously as of the date the PERM application was filed. 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 primary reasons for 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 Long is PERM Prevailing Wage Valid?
- The PERM prevailing wage is only valid for between 90 days and one year from the date of issue.
- The period is determined by the National Prevailing Wage Center (NPWC)
- The specific validity period is stated on the determination form itself.
Once the employer receives the prevailing wage determination, they are required to submit the recruitment file and PERM Labor Certification within the validity period.
The U.S. Department of Labor updates its prevailing wage data annually to reflect current market conditions. Because of this, an older wage determination may not be representative of the current pay standards, potentially disadvantaging U.S. workers.
To ensure fairness, each Prevailing Wage Determination (PWD) is issued with a strict validity period. If an employer fails to file the PERM application or begin recruitment within this timeframe, the determination expires and cannot be used.
The employer is then obligated to restart the process and request a new PWD based on the most current wage data.
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 validity period before the filing of the PERM application.
PERM Process Timeline
Below is an outline of the PERM process to give you a better understanding of where the prevailing wage determination fits in:
- Prevailing Wage Determination: Before any recruitment begins, the employer must first request and receive a Prevailing Wage Determination (PWD) from the U.S. Department of Labor (DOL)
- Recruitment and Labor Market Test: Once a PWD is received, the United States employer must carry out a mandatory, good-faith recruitment campaign to test U.S. labor market conditions.
- This involves placing job ads through various required channels (e.g., state workforce agency, newspaper ads).
- Employers must methodically document and make records of all steps for the Department of Labor (DOL) inspection.
- File Perm Application: After the recruitment period is complete and a mandatory 30-day “quiet period” has passed, the employer can file the Form ETA-9089, Application for Permanent Employment Certification.
- This form is filed electronically through the DOL’s FLAG system and attests that the employer completed all required steps and was unable to find a suitable U.S. worker.
- DOL Adjudication and Potential Audit: The DOL will review the application to ensure the employer followed all procedural rules. The purpose of the review is to verify the integrity of the recruitment process.
- Processing: processing times are typically 12-14 month or longer
- If an audit is triggered, the employer has 30 days from the request to respond with all documentation as proof of compliance
- Certification and Filing the I-140 Petition: When the Labor Certification is approved, the U.S. employer can file Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS), the next major step in the green card process.
- The validity period of the PERM is 180 days
- The case will be abandoned if THE I-140 is not filed in this time frame
- The Green Card Application Stage: After the I-140 is approved, the applicant has secured their “place in line” for a green card. However, they cannot take the final step until a visa is available to them.
- Priority Date: This is the date the PERM application was filed. It functions like a ticket number, securing the applicant’s spot in the queue.
- The Visa Bulletin: The U.S. Department of State releases a monthly Visa Bulletin that shows which priority dates are “current” and eligible to apply for a green card. Due to annual limits on green cards, there is often a significant backlog, especially for applicants from countries like India and China.
- Once the priority date is current, the applicant can file their green card application through one of two paths, depending on whether they are inside or outside the United States:
- Adjustment of Status (For Applicants in the U.S.)
- Consular Processing (For Applicants Abroad)
Prevailing Wage Calculator for Employees with Disabilities
You can find a prevailing wage calculator on the DOL website.
The calculators assist in determining the special minimum wages that may be paid by employers that receive a certificate from the Department of Labor to workers who have disabilities for the work being performed. These calculators, however, offer no assistance in determining whether the criteria for section 14(c) coverage are satisfied and may not be an appropriate tool for determining section 14(c) wages in every possible situation encountered in the workplace.
What is the prevailing wage under Section 14(c)?
This is the prevailing wage for work carried out by an employee with disabilities. Employers conduct a prevailing wage survey under this section by obtaining wage data for the job being performed by workers paid a subminimum wage.
Penalties for Not Following PWD Guidelines
The prevailing wage determination rules are in effect for a reason and failure to follow them can result in serious consequences. If the U.S. employer does not abide by the prevailing wage and pays the employee less, the DOL will most likely carry out an audit.
All recruitment documentation must be submitted during the audit so that an assessment can be made by officials. The PERM application will be denied if it is found that the company intended to pay the employee less than what was required, and this denial can affect future PERMS submitted by the U.S. employer.
Due to the severity of the consequences, it is highly advised to have a qualified employment immigration attorney review and file your case.
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.
H-2B and H2A Prevailing Wage Determination
For both the H-2B non-agricultural and PERM permanent labor certification programs, employers are required to first obtain an official Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC) before filing their main application.
This PWD sets the minimum wage for the job. The H-2A agricultural program, however, is an exception and does not use the NPWC for wage setting.
Instead of requesting a PWD, H-2A employers must determine and pay the highest applicable government-mandated wage rate for their area, which is most commonly the state-specific Adverse Effect Wage Rate (AEWR).
What Does the National Prevailing Wage Center Do?
The National Prevailing Wage Center (NPWC) is a specialized division of the U.S. Department of Labor that has one primary and critical function: to determine the minimum required wage for a specific job offered to a foreign worker in a particular geographic area.
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.
A key takeaway is that the same guarantee may not exist for prevailing wage determinations from other sources.
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 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 the Recruitment Process
It is beneficial to obtain the prevailing wage 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 outcome of events along the line.
For instance, if an employer uses a wage believed to be the 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
Timing is another reason for obtaining the PWD before the recruitment process, because the PWD is only valid for a limited period. If the recruitment begins before obtaining the 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 restart the entire process.
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, the prevailing wage and minimum wage are different and serve different purposes:
Prevailing Wage
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.
Minimum Wage
The minimum wage, on the other hand, is the lowest rate an employee is allowed to be paid.
- There is a mandated minimum wage by the federal government.
- Additionally, each U.S. state determines its minimum wage rates.
- The DOL allows employers in those states to choose the higher of the two wages for their employees.
Why is the prevailing wage determination only effective for a short period of time?
This is because U.S. labor market conditions can change quickly so to have the most accurate and updated information, the determination is only valid for a brief period.
How to Check PERM Labor Certification Status
- Look at the confirmation email from the DOL for the ETA Form 9098. The date received on this is the priority date and when that date becomes correct the application will be adjudicated.
- Go to the FLAG.DOL.GOV website and select processing times.
- Scroll down to PERM Processing Times
- Look for the line that says Analyst Review or, if your case has been audited, Audit Review. The priority date next to it will give you a sense of where you are in the adjudication timeline.
How can I check my prevailing wage status?
Consult your immigration attorney for specifics related to your case.
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 with 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 We Can Help
As an employer, you understand the value of expertise. The VisaNation Law Group has an extensive record of helping people use the PERM process as their first step towards lawful permanent residency. They will guide you, monitor your PWD case status, and navigate 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.
Schedule a consultation today
