How Do Employers Determine Prevailing Wage?

A Massachusetts attorney can help

By Doug Mentes, Esq.

One of the most important parts of labor certification for employers of visa applicants is determining the prevailing wage—the wage the employer will be required to pay the foreign temporary employee. Prevailing wages must be determined when applying for several different types of employee visas, including:

  • H-1B – typically professional positions
  • H-2A – agricultural workers
  • H-2B – non-agricultural workers

Part of labor certification process

Before an employer can submit an immigration petition to U.S. Citizenship and Immigration Services (USCIS), the employer must obtain labor certification. To obtain labor certification, the law requires the U.S. employer to prove both the following:

  • there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment
  • hiring a foreign worker will not adversely affect the working conditions or wages of U.S. workers in comparable positions

This means that the necessary hourly wage must be commensurate with what other workers in similar positions and experience in the local job market would expect to receive.

What is the process for the employer to determine prevailing wage?

The employer must request a prevailing wage from the National Prevailing Wage Center (NPWC) by submitting a four-page application for prevailing wage determination. This essentially includes the employer’s basic information and some detailed information about the job posting. The NPWC will return the form, indicating the prevailing wage, the source and the validity period.

A prevailing wage determination is valid for a period of time ranging from 90 days to a full year—though a 90-day validity period is most common. Employers typically must complete their recruitment activities and file their labor certification petition—or PERM (Program Electronic Review Management) application before the validity period expires. Otherwise, they run the risk of having to re-request a prevailing wage, which is subject to change.

Is it possible to estimate the prevailing wage?

Most employers should have an idea of what the expected wage for their advertised position will be. An immigration attorney can also provide estimates. There is, further, plenty of information available online that will help figure out what the prevailing wage will be in your situation.

Information on average wages can be found at the Foreign Labor Certification Data Center. The Bureau of Labor Statistics also publishes data on different positions within U.S. markets.

Other requirements of the prevailing wage

Besides deductions typically required under federal law, there are some deductions from the wage paid to the temporary foreign employee that are discretionary under federal law, including:

  • Deductions required by court order
  • Deductions for reasonable cost of board, lodging, and facilities furnished to the employee
  • Deductions the employee previously and voluntarily authorized to a third party (i.e. union dues)

The labor certification process results in a job order—the posting the employer will use to advertise the job to U.S. workers. The job order must specify all deductions from the worker’s paycheck required by law. Deductions not disclosed are prohibited, and the wage rate must be met free and clear—meaning without unauthorized deductions or kickbacks to the employer.

In some cases, employers must pay for the foreign worker’s travel expenses from their home country to the site of employment, and the expenses to return home. Also, the employer must provide to the worker, without charge or deposit, all tools, supplies, and equipment required to perform the assigned duties.

To gain a better understanding of the process for determining prevailing wage, and assure no mistakes are made, employers should discuss their options with an experienced Massachusetts immigration attorney.

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