Essential to obtaining approval of a PERM labor certification is proving that hiring an alien employee will not adversely affect the working conditions or wages of U.S. workers in comparable positions. In order to demonstrate this, a petitioning employer is required to provide the alien employee a level of minimum compensation, which is known as the prevailing wage for the job.
Who Sets Prevailing Wages?
The National Prevailing Wage Center (NPWC) determines prevailing wages. The Foreign Labor Certification Data Center also offers information on prevailing wages. NPWC collects data on all jobs in all industries in all regions of the U.S., and lists and updates these data in a publicly accessible online wage library.
Although NPWC makes the final determination on prevailing wage, an experienced attorney can usually make a preliminary determination based on the job position, requirements, and employment setting. By offering a preliminary estimate of the prevailing wage, the attorney is thus able to coordinate and design the job description and requirements based on the employer’s offer, ultimately helping to expedite the labor certification application process. Employers should note, however, that it is not unheard-of to wait several weeks for a prevailing wage determination.
How is a Prevailing Wage Determination Made?
NPWC matches the specific job offered with both the geographic region it is located and the skill level it requires as determined by educational background, work experience, and level of supervision associated with the job. To categorize jobs, NPWC uses five skill levels, which are also known as Job Zones. (For additional information on Job Zones, click here and here.)
As the base of a prevailing wage determination, NPWC generally uses data culled by Occupational Employment Statistics (OES), which is available online. If there is a qualified private alternative wage survey, NPWC will sometimes accept these data. However, a qualified private wage survey has to satisfy an additional layer of U.S. Department of Labor (DOL) criteria, and in practice, it’s essentially impossible for an employer to conduct a private survey for an individual labor certification application.
That said, experienced PERM attorneys have access to DOL’s accepted industrial private survey data, and may be able to obtain lower prevailing wage determinations using such data instead of only the publicly accessible OES information. At our firm, we’ve done just that, and by deploying the right strategies and data-based arguments, we’ve obtained lower prevailing wage determinations for our clients.
How Can I Obtain a Prevailing Wage Determination?
To obtain a prevailing wage determination, employers submit their requests, which are made with Form ETA-9141, to NPWC either by mail or via iCERT, DOL’s online platform. Employers can relegate this task to an experienced attorney.
For How Long is a Prevailing Wage Determination Valid?
A prevailing wage determination is valid for a period of time ranging from 90 days to a full year; a 90-day validity period is most common. Petitioning employers should complete their recruitment activities and file their PERM petitions before the validity period expires. Otherwise, they run the risk of having to re-request a prevailing wage, which is subject to change. Further, for a prevailing wage determination to be used in a labor certification application, a petitioning employer must either start advertising and recruitment during the validity period or otherwise file the PERM application during this window.
Here’s a real-world example to help illustrate the above information.
EZ4U, a multinational hospitality business, plans to file a labor certification application for an alien worker, Zuleyha. The company runs its first ad for the PERM position one day before receiving the prevailing wage determination it requested. All of EZ4U’s other advertisements are slated to run during the 90-day validity period. EZ4U, which did not hire an expert labor certification team, ends up submitting its PERM petition 91 days later.
Will DOL approve EZ4U’s PERM petition?
No. DOL will deny this labor certification application because EZ4U neither started recruitment nor filed the PERM petition for Zuleyha within the prevailing wage determination validity period. If the company had either started recruitment or filed its PERM petition within the validity period, then the case could have been approved. For now, Zuleyha will not be able to join EZ4U at its world headquarters in Seattle.
Prevailing wage determinations are connected to the job at the focus of a labor certification application, and not to the employee. Including the right information relevant to the job is crucial, since a mistake can alter the amount of the prevailing wage. Oftentimes, such a mistake cannot be rectified if recruitment has already begun, and it is not uncommon for the application to be denied as a result. Accordingly, so that you don’t find yourself in EZ4U’s position, we strongly recommend you retain highly experienced PERM attorneys.
Overall, PERM labor certification is an extremely complicated and time-sensitive procedure. We recommend that you consult with an experienced immigration attorney. Over the years, Zhang & Associates has successfully handled hundreds of PERM cases. If you would like to contact us, we’re available by phone at (713) 771-8433, or you can visit us at one of our eight U.S. locations. We’re also conveniently available by e-mail at email@example.com. Our attorneys will use their experience, expertise, and teamwork to ensure the highest quality of service for your PERM case.
For more detailed information on PERM labor certification, including minimum requirements and USCIS policies, refer to the following links: