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The First Hurdle: The Prevailing Wage Determination

To sponsor a foreign worker for a green card, the first step a U.S. employer must complete is the Labor Certification process, also known as the PERM process. The PERM process, itself, contains multiple steps, steps that must be completed before the Department of Labor will certify the PERM application.

The Labor Certification process was instituted by DOL in order to protect the employment prospects and working conditions of U.S. workers. In order to obtain the necessary PERM certification to sponsor a foreign worker, the U.S. employer must show that there are no able, willing, qualified, and available U.S. workers through a good faith test of the U.S. labor market. One of the major tenants of the Immigration and Nationality Act (INA) requires that the hiring of a foreign workers will not adversely affect the wages and working conditions of comparably employed U.S. workers. The institution of a prevailing wage is one way to ensure that the presence of foreign workers in the U.S. labor market is not detrimental to the interests of their American counterparts.

The prevailing wage rate is defined by DOL as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.” As a common form of labor exploitation is lower wages, the prevailing wage must be determined and paid to the foreign worker so that hiring such foreign workers will not adversely impact other U.S. workers.

U.S. employers interested in hiring foreign workers and sponsoring these workers for an employment based green card must first obtain a prevailing wage determination, or PWD, from the Department of Labor’s National Prevailing Wage Center (NPWC). This is the first major step in the Labor Certification process. Form ETA-9194 is the Application for a Prevailing Wage Determination filed with NPWC.

Form ETA-9194 includes the job duties, job requirements, and location of the job for which foreign workers will be sponsored for. The form must also include the occupational code for which the employer believes the job is most appropriate. The NPWC determines the prevailing wage for the submitted position based on the specified geographic location, job duties, minimum requirements in education and experience, and other details. This is why a software developer position based in San Francisco, California can have a very different prevailing wage rate from a software developer position based in St. Louis, Missouri.

The prevailing wage determined by the NPWC sets the minimum wage which must be paid to the foreign worker. Employers must pay the employee at or above the prevailing wage rate. It should be noted that the prevailing wage rate must be paid to the sponsored employee once the green card has been granted. Prior to the green card being issued, the employee is not required to pay the prevailing wage rate. However, it is important to also note that while employers do not have to pay the prevailing wage rate to the sponsored employee until the green card is issued, at the time of filing the I-140 petition with USCIS, the employer must demonstrate they have the ability to pay the offered rate. More about ability to pay can be found here.

While there is an Online Wage Library updated every July 1st by the Office of Foreign Labor Certification (OFLC) where employers can search for prevailing wages for a particular occupation in a particular location, the Department of Labor will decide on their own which occupational code to assign a job based on the job duties and requirements laid out in Form ETA-9194. As it is currently taking around 6 to 7 months for the NPWC to issue prevailing wage determinations, it is important to craft the job description submitted on the prevailing wage request carefully. Any inconsistencies or errors could cause delays in the issuance of a valid prevailing wage determination.

An experienced immigration attorney who is well versed in not only the overall employment based green card process, but the PERM labor certification process specifically, can provide legal advice on the regulatory requirements, making sure the prevailing wage request and minimum requirements for the position are properly submitted. As the processing times for prevailing wage determinations are steadily increasing, unforeseen errors can cause consequences in timing and strategy when dealing with employees maintaining valid nonimmigrant status to remain in the US. Working with an attorney will ensure the process is successful from the very onset as mistakes made could require the entire process be started again.

For over 25 years, Reddy Neumann Brown PC. has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy Neumann Brown’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.Jessica earned her J.D. from the University of Houston Law Center in 2009 and was admitted into the Texas bar the same year.  As the child of two immigrant parents, Jessica found her passion for immigration law early in her career.  With over a decade of experience in both the private and non-profit sectors, she brings a different perspective to each case she handles.  Through the years, Jessica has learned that to achieve the best possible results for each individual served, one must keep things simple and provide personalized attention and care to each case.