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The Importance of Prevailing Wage Determination in Employment-Based Immigration

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Employment-based immigration is a complex process that requires careful consideration of various factors, including the prevailing wage determination (PWD). 

The PWD plays a crucial role in ensuring that foreign workers are paid fairly and that the U.S. job market remains competitive.

In this article, we will discuss the importance of PWD in the employment-based immigration system and how immigration lawyers can help employers and immigrants navigate the immigration process.

What is Prevailing Wage Determination? 

 

The PWD is a process that determines the wages a foreign worker will earn compared to U.S. workers’ wages in the same position. The U.S. Department of Labor (DOL) is responsible for making this determination, taking into account factors such as:

Market conditions

Market conditions play a crucial role in determining the prevailing wage for a specific occupation. The DOL considers the supply and demand for labor, as well as the overall economic climate, when setting the wage rates.

This helps to ensure that foreign workers are paid fairly and in line with the current job market, preventing employers from exploiting low-wage workers and maintaining a level playing field for both U.S. and foreign workers.

Experience

Experience is another factor considered by the DOL when determining the prevailing wage. Workers with more experience in a particular field or occupation typically command higher salaries than those with less experience.

By taking experience into account, the PWD process helps to ensure that foreign workers with similar experience levels as their U.S. counterparts receive comparable wages, promoting fairness and equity in the labor market.

Geography

Geographical location can significantly impact wage rates, as the cost of living and demand for labor vary across different regions. The DOL takes this into consideration when determining the prevailing wage, ensuring that foreign workers are paid wages that are appropriate for the region in which they will be employed.

This helps to prevent the exploitation of foreign workers and ensures that they receive wages in line with their U.S. counterparts in the same geographic area.

Qualifications

The DOL also takes into account the qualifications of foreign workers when determining the prevailing wage. This includes factors such as education, certifications, and specialized training. By considering these qualifications, the PWD process ensures that foreign workers with similar qualifications to their U.S. counterparts receive comparable wages. 

The Role of Immigration Lawyers

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Immigration lawyers play a vital role in the PWD process. They work closely with employers to create job descriptions that accurately reflect the employer’s needs in hiring a foreign worker.

This helps the DOL determine the appropriate wage for the position, ensuring that it does not undercut the job market or overpay for the role.

Immigration lawyers also help employers navigate the PWD process by: 

  1. Creating job descriptions: They work with employers to create job descriptions that accurately reflect the skills and qualifications needed for the job, including years of experience, job-specific experience, and any other requirements necessary for the role.

  2. Submitting the PWD application: Immigration lawyers submit the job description to the DOL through their PWD online process. The DOL then takes 4-6 months to determine the appropriate wage for the position, based on factors such as geography, market conditions, and job requirements.

  3. Navigating the PWD process: Immigration lawyers help employers avoid pitfalls in the PWD process, ensuring that their applications are not denied and that they do not overpay for positions in the U.S. that they have identified for foreign workers. 

 

Prevailing Wage Determination for Non-Immigrant and Permanent Positions

 

The PWD process differs for non-immigrant visas (such as H1B visas) and permanent positions (green card processing). For non-immigrant visas, the PWD process is less extensive, with decisions made according to published surveys and other data.

The PWD for permanent positions takes several months and may involve higher wages; however, employers can appeal the decision or apply again with modified job requirements.

H1B Wage Levels

The PWD process for H1B visas involves assigning wage levels based on the Occupational Information Network (ONET) and the National Prevailing Wage Center. These wage levels are determined by factors such as experience, education, qualifications, and skills needed for the job: 

  • H1B Wage Level 1 – Entry: This wage level is for entry-level H1B workers with basic understanding of the job, corresponding to the 17th percentile.

  • H1B Wage Level 2 – Qualified: This wage level is for qualified workers with education and experience who can perform moderate tasks with limited judgment, corresponding to the 34th percentile.

  • H1B Wage Level 3 – Experienced: This wage level is for experienced workers with deeper experience and education, requiring judgment and possibly managing people, corresponding to the 50th percentile.

  • H1B Wage Level 4 – Fully Competent: This wage level is for expert-level workers who can perform complex tasks and exercise significant judgment, possibly including management responsibilities, corresponding to the 67th percentile. 

 

How to File for Prevailing Wage Determination?

 

If you are curious about filing for Prevailing Wage Determination, it’s essential to understand the process and the necessary steps to ensure a smooth experience. The Prevailing Wage Determination is requested through Form ETA 9141, submitted to the National Prevailing Wage Center (NPWC).This form requires information about the sponsoring firm, job title, work responsibilities, minimal job criteria, and the site of employment.

Processing Time

The time it takes to process a prevailing wage determination can vary, typically ranging from a few weeks to two months. Once the determination is received, the employer is required to post a job advertisement for a minimum of 30 days.

After this period, there’s an additional 30-day window for potential applicants to approach the employer regarding the advertised position.

When the recruitment process is complete, the employer can file Form ETA 9089, which may take up to six months to process.

However, receiving an audit could delay the application by up to nine months.

In total, the processing time for prevailing wage rate determination can be quite variable, with a minimum duration of around eight to nine months.

Validity period

Due to the ever-changing economy in the United States, the determined prevailing wage is only valid for a limited time. Under the PERM process, the prevailing wage is effective for a minimum of 90 days.

If the employer fails to submit the required documentation within this specified time frame, they must resubmit the paperwork and obtain a new prevailing wage determination.

This is because labor statistics and market conditions can change rapidly, impacting wage rates.

Prevailing Wage vs. Minimum Wage

 

Prevailing Wage and Minimum Wage are distinct from one another and serve various purposes in the context of employment and labor regulations.

Understanding their differences is crucial to ensuring fair compensation for workers.

As a foreign worker utilizing the PERM labor application, you are entitled to the prevailing wage, which is the wage that other employees earn in a similar role. This wage is determined by factors such as job requirements, experience, qualifications, and location, ensuring that foreign workers receive comparable compensation to their U.S. counterparts in the same position.

On the other hand, the minimum wage is the lowest compensation that can be paid to an employee, regardless of their position or experience. This wage is set by federal, state, or local laws and is intended to provide a baseline income for workers to meet their basic needs. Currently, 45 states in the United States have their own rates of minimum wage, which may be higher than the federal minimum wage.

Helpful article: Most Immigrant Friendly States in the US

Can Prevailing Wage Determination Be Rejected?

 

Yes, it is possible for a Prevailing Wage Determination to be rejected, particularly if the employer cannot demonstrate their ability to pay the prevailing wage. This is one of the primary reasons for a PERM denial. The labor certification application must guarantee 100% of the prevailing wage for the position in question.

While employers are allowed to offer the foreign worker a salary higher than the prevailing wage, they cannot offer less. Ensuring that the prevailing wage is met is crucial for maintaining fairness and protecting both domestic and foreign workers in the labor market.

How Do I Challenge Prevailing Wage Determination?

 

As an employer, if in any case, you are not satisfied with the Prevailing Wage Determination due to concerns such as excessively high wages, you have the option to appeal the decision. One approach is to apply again and modify the job requirements to better align with the prevailing wage for the position.

Alternatively, you can request a review of the determination in writing. It’s important to submit this request within 30 days of the date of the determination to ensure timely consideration. 

Conclusion 

 

The prevailing wage determination process is an essential component of the employment-based immigration system, ensuring that foreign workers are paid fairly and protecting the U.S. job market. 

Immigration lawyers play a critical role in helping employers and immigrants navigate this complex process, ensuring that job descriptions accurately reflect the skills and qualifications needed for the role and guiding employers through the PWD application process.

By understanding the importance of PWD and working with experienced immigration lawyers, employers and immigrants can successfully navigate the employment-based immigration system.

If you are looking for expert guidance in navigating the prevailing wage determination process, feel free to contact us at Westover Law Firm today. We offer personalized assistance and support in achieving the best possible results for your employment-based immigration needs.

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