Hiring a foreign national employee must not adversely affect the working conditions and wages of U.S. workers. In order to achieve this, the employer is required to pay the employee at minimum what is called the “prevailing wage” for the job. The prevailing wage is determined through the National Prevailing Wage Center (NPWC).The NPWC has been in operation since January 2010.
The NPWC determines the prevailing wage by collecting data for all jobs in all areas of the U.S. and keeping the data in the publically accessible OES database. The NPWC will match the job offered with a geographic region and a “skill level” related to the education, experience and level of supervision of the job being offered. There are 5 skill levels (known as JobZones) for the purposes of determining the prevailing wage. JobZones are discussed in more detail below in “EB-2 vs. EB-3 in the PERM Process.” The NPWC determines the prevailing wage based on the OES data for the type of job, the geographic region, and the skill level. For more information on the skill levels, see the O*Net Job Zones.
When requesting a prevailing wage determination, PERM labor certification applicants can request the prevailing wage through the National Prevailing Wage Center, either by mail or through the iCert online system. A prevailing wage determination is valid for anywhere from 90 days to 1 year (validity periods of 90 days are the most common). It is recommended that an employer complete recruitment and file the PERM labor certification application within the validity period, or else they will have to re-request the prevailing wage determination, which is subject to change. For a prevailing wage determination to be used for a PERM petition the PERM advertisement must either START during the PWD validity period or the PERM application must be filed during the validity period.
Example: Company A plans to file a labor certification for Ms. Smith. The company runs its first ad for the PERM position one day BEFORE receiving a PWD. All of the company’s other advertisements occur during the PWD validity period. However, the PWD expires one day before Company A submits its PERM petition. This case will be denied because Company A neither started recruitment nor filed the PERM petition within the PWD validity period.
If Company A in the above example had either STARTED the recruitment process or filed the PERM petition within the PWD validity period then the case could have been approved. For more information on the prevailing wage, please click here.
Prevailing wage determinations are connected to the job and not the employee. Including the right information can be very important, since a mistake can change the prevailing wage amount. This kind of mistake sometimes cannot be fixed if recruitment has already started, and sometimes such a mistake will result in a denial of the PERM labor certification application once it has been filed. We recommend you retain highly experienced attorneys knowledgeable about PERM labor certification applications to avoid these kinds of problems.
Although the NPWC makes the final determination on prevailing wage, an experienced attorney can usually make a preliminary determination of the PW based on the position, requirements, and employment setting. By offering a preliminary determination of the PW, the attorney is able to coordinate and design the job description and requirements based on the employer’s offer, thereby expediting the process.
The NPWC generally uses online data from Occupational Employment Statistics (OES) as a base for PWD. However, if there is a qualified private alternative wage survey, the NPWC will also accept the alternative wage survey data. A qualified private wage survey has to meet very complicated and comprehensive requirements established by the DOL’s regulations. It is almost impossible for an employer to conduct a survey for an individual case. However, experienced PERM attorneys have access to the DOL’s accepted industrial private survey data and may obtain a lower PWD than OES online data. With proper argument, our office has successfully received a PWD from the NPWC on some cases lower than the PWD provided by the OES.
PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced and responsible immigration attorney. We have successfully represented many PERM cases. If you would like to contact us, please telephone us at (713) 771-8433 or visit us at one of our six locations. You can also contact us conveniently online by emailing us at email@example.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service.
(Updated 10/1/2012 by AD)
For more information on PERM Labor Certification, please refer to the following links:
PERM General Issues