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The PERM prevailing wage is in place to ensure employers pay their employees the minimum wage for that particular job. The prevailing wage is a part of the PERM labor certification. USCIS requires employers to acquire it on behalf of the foreign worker seeking to reside permanently in the United States. The organization responsible for determining this, the National Prevailing Wage Center (NPWC), bases its determinations on data gathered throughout the United States. We’ll go over commonly asked questions, including what happens if the PWD expires, the prevailing wage determination processing time, the standard PERM, the prevailing wage determination expiration date, and more.
The DOL defines the prevailing wage as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.”
This is the minimum wage an employer must pay a foreign worker for the job they intend to perform. The prevailing wage is not the same as the state or federal minimum wage.
The prevailing wage determination is a process the Department of Labor (DOL) uses to ensure that foreign workers are paid fairly and that hiring them does not negatively impact U.S. workers’ wages.
The PERM process is a labor certification that the U.S. Department of Labor (DOL) uses to help protect U.S. citizens’ jobs and working conditions. It achieves this by requiring employers to undergo an extensive recruitment process to ensure that no qualified U.S. workers are available for the position in the area. The prevailing wage determination is an additional way that PERM protects U.S. workers.
Employers must agree to pay the foreign worker at least the prevailing wage for the position, as determined by the DOL. In addition, employers must demonstrate that they are financially capable of paying this wage. This can be done through financial documentation such as income and bank statements, as well as evidence of the salaries of similar workers within the organization.
A fundamental part of the PERM process involves obtaining a prevailing wage determination. Here are the steps to check and determine the prevailing wage for foreign workers:
Identify the Relevant Program: Determine which employment-based visa program applies (e.g., H-1B, H-1B1, E-3, H-2B, H-2A, or PERM).
Access Wage Information: For most programs (H-1B, H-1B1, E-3), employers can obtain the prevailing wage through three methods:
Request a prevailing wage determination from the NPWC.
Complete and submit Form ETA-9141 (PERM):
Receive the Prevailing Wage Determination:
Check for Safe-Harbor Status:
Verify Compliance for Specific Programs:
File or Apply:
In many cases, the DOL will use its Online Wage Library (which is based on the Occupational Employment Statistics (OES) survey) to determine the PERM prevailing wage. (OES database). The center also determines the wage by matching the offered position with the following:
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.
You can check the prevailing wage using the OFLC (Office of Foreign Labor Certification) Online Wage Library, which provides publicly available wage data. However, when applying for a prevailing wage determination (PWD) for the PERM process, you must submit Form ETA-9141 through the Foreign Labor Application Gateway (FLAG) system.
Here’s how to check the prevailing wage online:
In PERM cases, the employer is only required to pay the prevailing wage to the foreign national once the foreign national becomes a permanent resident of the U.S. It is important to note, however, that when the employer files the second stage of the green card case (the I-140, Immigrant Petition for Alien Worker), the employer will be required to document that it could pay the proffered wage (the wage listed in the PERM application)) as of the date upon which the PERM application was filed.
Before the PERM application is undertaken, it is important to make sure that the employer has a viable business and can pay the proffered wage. 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 major causes of a 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.
For the H-1B, H-1B1, or EB-3 programs, employers need to pay the higher of the prevailing wage or the wage they pay other workers in the company with similar skills and responsibilities.
In addition, EB-2 applicants can avoid the prevailing wage determination if USCIS grants them a National Interest Waiver. An NIW petition permits a foreign national to self-petition and bypass the customary route, which includes getting a permanent job offer and the accompanying labor certification. With an NIW, you essentially get to skip the labor certification requirement in light of the “national interest for the U.S.”
The National Prevailing Wage Center (NPWC) considers several factors when determining the appropriate prevailing wage for every job offer. The process starts with an entry-level wage and progresses to a wage for a fully qualified, experienced, or competent worker, based on the education, experience, and skills required for the position in the employer’s job description. The NPWC uses the following key elements in determining the prevailing wage:
Nature of the Job Offer
The nature of the job offer is determined by reviewing the requirements of the employer’s offer to arrive at the appropriate occupational classification for the position. The NPWC will use the Occupational Information Network (O*NET) description that corresponds with the job offer to identify the appropriate occupational classification.
Area of Intended Employment
According to the DOL, the area of intended employment means the area within the normal commuting distance of the address of the intended employment. This means the wage that is appropriate using the current wage rate in that geographic location. The NPWC uses the On-Line Wage Library to determine this.
Similarly-Employed
This refers to the wages paid to workers in comparable jobs within the area of intended employment. If there are no similar jobs in the area, the NPWC will use wage data for similar jobs in nearby areas or the broader region. This helps ensure that the wage rate reflects the appropriate market conditions for the occupation.
Example: The prevailing wage for a software engineer in Canton, Ohio, may be very different from a software engineer in San Jose, California. Likewise, a systems analyst for a startup and for a corporate giant will also differ, even if they are in the same location. Your immigration attorney can help you get a better idea of what the prevailing wage for the position will be.
The prevailing wage determination processing time is around 5-6 months from the date the ETA Form 9141 (Application for Prevailing Wage Determination) is submitted to the NPWC.
Afterward, the employer must run advertisements for the job for at least 30 days before waiting an additional 30 days for potential applicants to respond, for a total of at least two more months for recruitment.
After the recruitment period, the form ETA 9089 Application for Permanent Employment Certification can be filed, taking the DOL 16 months to process. However, receiving an audit or being issued supervised recruitment can delay processing.
Therefore, the total prevailing wage determination can be substantial.
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 will need to 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.
Learn about PERM Recruitment requirements.
The employer can request that the DOL base the prevailing wage determination on a private wage survey in specific scenarios. It’s best to consult an immigration attorney with experience handling private wage surveys to explore this option.
To demonstrate the importance of filing the PERM petition within the prevailing wage determination period, here’s an example:
Company X intends to file a labor certification for Mr. Jones. Company X runs an ad for the PERM position one day before receiving their prevailing wage determination. The remaining ads are run during the prevailing wage validity period, but they expire one day before Company X submits the PERM petition. Due to faulty timing, the case will be denied because they did not begin recruiting or file the petition at the right time.
Company X could have improved this situation had it started the recruitment process and/or filed the PERM petition during the validity period. It likely would have been approved had these been the circumstances. Again, it’s ideal to work alongside a knowledgeable attorney who has experience with PERM prevailing wage determination to avoid any delays or denials like this.
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However, as soon as the employer gets the prevailing wage designated by the center, the employer must submit the recruitment file and PERM Labor Certification within the validity period.
What if the employer starts advertising while the prevailing wage determination is pending?
If that’s the case, then the PERM application must be submitted by the expiration date of the prevailing wage determination or by the date the advertisement expires (whichever date is sooner).
What if all the advertisements start after the prevailing wage determination is issued?
If that’s the case, then the PERM must be submitted by the expiration date of the advertisements.
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.
You are able to check your PWD status on the Department of Labor website by entering your case number.
If it has expired, then the employer will have to begin the process anew and file a new PWD request with the Department of Labor.
Unfortunately, the PWD and PERM cannot be filed together. The PWD must be obtained first from the Department of Labor before then filing the PERM application.
The calculation is determined by finding the weighted average. This is done by first identifying if more than 50% of the workforce in that classification category is paid the union wage or the same rate, and then that becomes the prevailing wage.
There could be monetary fines imposed, plus payback wages to employees if the prevailing wage is incorrect. What’s more, you run the risk of potentially being barred from other government contracts due to noncompliance if it is found that the prevailing wage is incorrect.
No. The prevailing wage, minimum wage, and living wage are all different and serve different purposes. Many employment-based visa applicants mistake the above terms commonly used in the United States labor market.
As a foreign worker using the PERM labor application, you are entitled to the prevailing wage, which is what other employees working a similar position earn in your area of employment.
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. Apart from this, there are also 45 U.S. states with their own minimum wage rates. The DOL allows employers in those states to choose the higher of the two wages for their employees.
Since U.S. labor market conditions can change quickly, this is put in place to have the most accurate and updated information.
If you suspect that your employer has not been paying you the correct prevailing wage, you may file a complaint to 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.
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.
Unfortunately, premium processing is only for employment-based immigrant and nonimmigrant visa petitions (those that use the I-129 and I-140 forms). Therefore, you cannot use it to expedite the PERM process. Consult your immigration attorney about the most up-to-date PERM processing time in 2021.
If you opt for the electronic route and include the audit adjudicating process, the DOL estimates that a clean application takes fewer than sixty days to complete. The time for audited cases may vary depending on DOL’s requests. While we can’t say for sure how long your processing will take, it should be around 60-90 days.
The 30-day “quiet period” is when the employer must give U.S. workers to respond to the recruitment efforts. After the job advertisements have been placed and posted, the employer must wait 30 days before filing the ETA 9089. However, if the position is considered a professional occupation, the employer may choose to have only one of the three recruitment mediums during the 30-day quiet period.
The 30-day hold or ‘quiet’ period is the time frame after completing most recruitment and filing the application. Once an employer files a PERM labor certification, they must wait 30 days for any additional job applications to come in.
There is no fee tied to the ETA 9089. However, the employer will most likely encounter costs when posting job advertisements during the recruitment process.
You’ll need a local Labor Market Analysis (evidence that U.S. workers are incapable/ineligible of performing this employment). This includes job orders, newspaper ads, prints of website job ads, U.S. Employer Audit File, immigrant petition, and completed Form ETA 9089.
To satisfy these requirements, the employer must first place a job order with the state workforce agency and place an ad in 2 consecutive Sunday editions of a local newspaper.
After submitting this form, you’ll have to wait a few months for the DOL to adjudicate the PERM. From there, they can either approve the PERM, deny it, or conduct an audit. If DOL initiates an audit, they will ask the employer to submit additional forms of evidence. Since this can become burdensome, we advise seeking an immigration attorney.
If during recruitment, the employer can find willing and able U.S. workers and they accept the position, then the PERM application will end at that point. Later, if the employer chooses, they can restart the PERM process.
If this happens, then it will most likely lead to an audit or, worse yet, a rejection. For that reason, it is highly advised to work with a qualified immigration attorney.
The PERM process can be complex, and either an audit or supervised recruitment can set you back in your timeline. Therefore, doing it right the first time and avoiding easy-to-make mistakes can save you time, effort, stress, and money. That’s why it’s best to have an immigration attorney help you through the entire process and give you a relevant idea of PWD processing time. Then, with a professional by your side, you can rest easy knowing you have the best chances of a speedy and stress-free PERM process. Schedule a consultation to get started today!
