Prevailing Wage Determination

Posted on August 01, 2006 by Warren Wen | Category: Immigration

How Does Prevailing Wage Determination Affect Green card Application?

In order to protect U.S. workers from unfair competition from foreign worker, the U.S. government requires any employer who wants to employ alien workers to pay the alien workers the prevailing wage as the minimum.  Specifically, the prevailing wage is the average wage paid to similarly employed workers in the requested occupation in the area of intended employment.  Prior to filing the application for Permanent Employment Certification, the employer needs to obtain a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment, and the employer is required to include this information provided by the SWA on his application for labor certification.  According to the PERM regulation, it is crucial that the wage offered to an alien is equal or exceeding the prevailing wage determined by the SWA.  In other words, the wage offered for the job opportunity for which certification is sought must be at least 100% of the prevailing wage.

The employer does not need to wait until he received a prevailing wage determination to actually begin the recruitment.  However, the employer must be aware that in its recruiting process, which includes proving a notice of filing starting the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate.  Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.  Thus, it is a good idea that the employer obtained a prevailing wage determination BEFORE he actually began the recruitment process.

If the employer is filing labor certification applications for multiple employees, he is permitted to use the same prevailing wage determination as long as the following conditions are met:

  • The prevailing wage is for the same occupation and skill level;
  • The same wage source is applicable;
  • The same area of intended employment is involved;
  • The prevailing wage determined by the SWA is still valid at the time of filing for other applications for labor certification.

The valid period for the prevailing wage differs by each state, and it ranges from 90 days to one year from the determination date.  In the state of Georgia, the prevailing wage determination is valid for not less than 90 days from the date it is issued or until the end of the calendar year, whichever is greater.  In another words, the prevailing wage is valid for almost a year if it was determined in early January, while it is only good for three months if it was determined sometime in December although both were determined in the same year. However, 6 months validity period has been more commonly seen after the new regulation has been published by the Department of Labor.  To use the determination received from the SWA, the employer must file its application or begin the recruitment required within the validity period specified by the SWA. If an application was filed after the prevailing wage determination expired or the recruitment did not begin until it expired, the application could easily be denied.

If the employer disagrees with the SWA’s prevailing wage determination, the employer is allowed one opportunity to provide supplemental information to the SWA.  Additionally, the employer may choose to file a new request for a wage determination or request for a wage determination or request review by the Certifying Officer.  In submitting a PERM application, the employer declares that he has read and reviewed the application and that the information in the application is true and accurate.  Thus, the employer would be responsible for ensuring the prevailing wage determination information provided by the SWA and entered on PERM application is correct and for taking steps to obtain corrected prevailing wage determinations from the SWA as needed.

Obtaining the prevailing wage determination may seem like a very small step and maybe the simplest step in the overall PERM process.  However, this step is a very important step in filing applications for labor certification since the information provided in the prevailing wage determination, such as prevailing wage, the occupation title, the skill level, the wage source, the determination data, and the expiration date, and etc. are very crucial information in the recruitment process.  Seeking professional help in drafting the prevailing wage request would be a wise idea for the employer in terms of improving the approval rate of the application.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.