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Employment Immigration: Understanding PERM and the Prevailing Wage

Generally, when a U.S. employer wants a foreign worker to come to the United States on an employment based green card, he/she has to file a petition with the United States Citizenship and Immigration Services (USCIS) using form I-140. However, before he/she does this, he/she is required to get a PERM labor certification from the Department of Labor (DOL).

This certification is for the DOL to let USCIS know that there are not “sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.”

The employer has to provide the foreign employee compensation that is commensurate with the prevailing wage for the job. To determine what this prevailing wage is, an employer needs to submit form ETA 9141 to make a prevailing wage request to the National Prevailing Wage Center (NPWC).  They can also obtain this information from other legitimate sources like the Online Wage Library which is part of the website of the Foreign Labor Certification Data Center.

The average wage paid to people employed in a similar position, in that specific occupation, and in that specific region as that of the intended employment, is referred to as the prevailing wage. This will be set as the minimum wage that the employer pays the immigrant employee when the employee becomes a permanent resident.

The prevailing wage is determined to take several factors into consideration including education, skill set, experience, geographic location, ability to work without supervision, etc. This means that the prevailing wage for a job in one city may be different from that of a similar job in a different city.


The PERM Process

This process is defined by the DOL to ensure that a U.S. employer does not bypass U.S. citizens or permanent residents when offering a job to a foreign employee.

To get the Labor Certification, the employer needs to find the prevailing wage for that position as explained above. The prevailing wages change depending on the changing economy and so the PERM, prevailing wage that the employer receives from the DOL is valid for only 90 days.

Within this period, the employer has to determine whether there are U.S. citizens or permanent residents who are qualified for the job being offered. To do this, the job offer should be advertised in as many ways as possible including being posted on the DOL run State Workforce Agency for a month at least. The position should also be advertised in two consecutive Sunday editions of a local newspaper with a large circulation. There should be internal job posting at all the work locations of the employer. Apart from this, the employer has to also advertise using different methods like job search websites, employee referral programs, radio and television, job fairs, campus recruitments, etc. At least three of these additional methods are required. 

The employer should practice due diligence to the people responding to these advertisements. If no U.S. citizen or permanent resident is found with suitable skills for this position, then the employer can file an application for Labor Certification with the DOL.

If the PERM application is approved, the employer needs to file Form I-140, Immigrant Worker Petition with the USCIS. The employer has to establish that they can pay the stated salary and that the employee has the minimum requirements for the position.

Furthermore, keep in mind that there are other ways to get prevailing wage information, like requesting information based on wage surveys. You may want to seek help of an immigration attorney to help navigate this complicated process.

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Immigration law can be complicated and this article does not exhaust all the circumstances surrounding the PERM Labor Certification and prevailing wages. These issues can be extremely complex, and a single misstep could potentially lead to a rejection of your application or other immigration penalties. If you have any questions regarding this matter, please do not hesitate to contact our office.

Call our law firm for a consultation today at: (949) 478-4936.