One of the first steps in filing a PERM application is to obtain a prevailing wage determination. Until 2010, individual state workforce agencies processed prevailing wage determinations. In 2010, that changed as the Department of Labor (“DOL”) began requiring all such determinations to be handled by the National Prevailing Wage and Helpdesk Center (“the NPWHC”).
A formal prevailing wage determination is required for every PERM application. The prevailing wage is a rate of pay calculated by DOL based on the average wages for a particular job in a certain geographic area. This amount represents the minimum allowable wage that an employer can pay someone that it wishes to sponsor for permanent residence through the PERM process.
Remember: whenever considering the way DOL regulations work regarding the PERM process, the overarching theme of the regulations is the protection of the American worker. Members of Congress have no interest in being portrayed as favoring foreign workers over U.S. citizen voters. So while some provisions may seem burdensome or unduly restrictive, immigration is essentially a political issue and protecting the people who can actually vote is usually at the forefront of a member of Congress’s mind.
Prevailing wage requests are submitted to the NPWHC through Form ETA-9141, the Application for Prevailing Wage Determination (“PWD”). The applications are adjudicated in the first in, first out order.
The relevant factors used by DOL in determining a prevailing wage rate are:
- The nature of the job offer. DOL reviews the requirement of the employer’s job offer and determines the appropriate occupational classification through O*NET.
- The area of intended employment. This means the area within normal commuting distance of the work site address. The prevailing wage can vary greatly from area to area.
- Job duties for workers with similar jobs. DOL verifies that the submitted job description and position requirements match those duties of employees holding similar jobs.
If the position is in an occupation covered by a collective bargaining agreement between the employer and a union, the wage rate in the agreement shall be deemed the correct prevailing wage.
Absent a collective bargaining agreement, the NPWHC uses O*NET information to determine the tasks, work activities, knowledge and skills generally needed for performance in an occupation. Employers should therefore make sure that the job description included in the request for a prevailing wage include sufficient information to determine how complex the job is, the level of judgment that the employee has, the amount and level of supervision and how much understanding of the job that the employee needs. Employers may be asked by NPWHC to provide additional information.
Another thing to keep in mind s that O*NET job zones also provide guidance in determining whether the job offer is for an entry level, qualified, experienced or fully competent employee in determining the wage level. A prevailing wage determination at a higher level may be warranted if the employer requirements are at the upper range of the occupation scale. That is, a low level position within the occupation may allow for a Level 1 Wage, while a supervisory or experienced role may require a Level 4 Wage within that job classification.
The law provides that in instances where there is no collective bargaining agreement, the employer may choose to use a current wage determination from certain private services, at the employer’s cost. This employer survey may be submitted initially or after the NPWHC issues a prevailing wage determination. If the employer submits the wage survey after the initial NPHWC prevailing wage determination, the new wage data from the survey is treated as a new PWD request.
The NPWHC has the authority to request additional information from the employer if it lacks enough information to make the prevailing wage determination. The NPWHC issues its wage termination on the ETA Form 9141, which is sent back to the employer. The response states the specific wage rate and cites the source of the information. PWD start and end dates must also be provided to the employer.
If the employer disagrees with the PWD, they have the right to request a redetermination from the Center Director and, if unsuccessful there, with the Board of Alien Labor Certification Appeals (“BALCA”).
Once the employer obtains a final, approved PWD, they may begin job recruitment efforts.