The prevailing wage determination is an essential check performed during the PERM labor certification process for U.S. employers who want to hire foreign workers.
It is carried out by the Department of Labor (DoL) to ensure the domestic employment market is not impacted by the presence of foreign labor. Employers must offer a salary which does not undercut domestic workers.
The prevailing wage determination is based on aspects like the location of the employer and the average wage for the position advertised. U.S. employers must be aware of the prevailing wage determination before embarking on the PERM labor certification process.
What Is The PERM Prevailing Wage?
The prevailing wage is a simple concept to understand. It is the average rate a local U.S. worker would receive if they were hired for the position advertised. In other words, employers must offer a similar wage and cannot undercut American workers through hiring foreign labor.
The average rate of local workers is not static across the whole country. There are considerable differences across states and municipalities. For example, the overall average wage in Knoxville, Tennessee, is $21.95, whereas in Seattle, Washington, it is $32.95.
Employers must factor the prevailing wage into their plans when deciding whether it is financially viable to sponsor a foreign worker.
The Prevailing Wage Determination Process
The prevailing wage determination process is an essential step in the process of bringing a skilled foreign worker to the U.S. for employment purposes.
Each step in the prevailing wage determination process must be followed and evidence supplied that those steps were completed.
How To Find The Prevailing Wage Determination
The prevailing wage determination can be obtained through submitting a formal request to the National Prevailing Wage Center (NPWC). Employers may also choose to use other sources, like the Online Wage Library.
Although there are some exceptions to the prevailing wage determination process, programs like E-3, H-1B and H-1B1 all require employers to pay the prevailing wage.
Proof Of Ability To Pay The Prevailing Wage
As part of the prevailing wage determination process, employers are also required to demonstrate that they are able to pay the prevailing wage to the chosen foreign worker once they become a permanent resident.
To demonstrate proof of a sustainable business, employers can submit their labor certification and financial documents. An experienced immigration attorney can advise employers on the exact documentation necessary.
Make The Position Publicly Available To U.S. Workers
There are two major aspects of the prevailing wage determination process. After making a formal request to the NPWC, the employer must also list the position in a number of public venues. This is known as the U.S. Labor Market Test.
The position must be posted simultaneously for a minimum of 30 days through State Workforce Agencies. The employer must also publish the position in the Sunday edition of a local newspaper if one is available.
Finally, employers must post a listing in three other locations. These locations can include but are not limited to job fairs, the company website, local newspapers, radio advertisements and job search engines.
The position must be kept open for a minimum of 30 days but no more than 180 days.
Requirements For The PERM Labor Certification
The PERM labor certification is an unavoidable step in gaining the permissions necessary to employ a foreign worker. Without this certification, employers are unable to support the chosen foreign worker in their visa application process.
Employers should plan for the process to take 60 days, as a minimum. However, on average, it can take anywhere from four to six months.
The primary requirements of PERM labor certification are an ability to pay the prevailing wage and a demonstration that the position cannot be filled by a domestic U.S. worker, known as the U.S. Labor Market Test, which is described in more detail above.
Some of the other conditions include: the employer must hire the worker on a full-time, non-seasonal basis, the position must be permanent and the education/experience requirements must be aligned with the requirements typically demanded for that position.
What Happens After Receiving PERM Labor Certification?
A PERM labor certification is not a permanent license to employ and sponsor foreign workers to come to the U.S.
Each PERM labor certification has an expiry date of 180 days. Employers must submit Form I-140 with the United States Citizenship and Immigration Services (USCIS) before the six-month limit expires. Failure to do so will result in the employer having to apply for PERM labor certification again.
Form I-140 is a demonstration to the USCIS that the foreign applicant has the necessary skills, qualifications and experience to fill the position, and that the employer is able to support them.
The USCIS average processing time for I-140 petitions is four to six months; however, if premium processing is sought, the application will be viewed within 15 calendar days. Premium processing currently costs $1,225.
Reach Out To An Experienced Immigration Attorney
An experienced immigration attorney can guide you through the complex process of meeting the requirements of PERM labor certification. They can also provide guidance on adjusting your immigration status.
Contact Pride Immigration and gain access to a team of immigration attorneys with years of experience in helping both employers and employees navigate the employment-based permanent residency process.
Beeraj Patel, Esq.
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