How Do Employers Determine Prevailing Wage?
A Massachusetts attorney can helpBy Doug Mentes, Esq. | Last updated on January 26, 2023
Use these links to jump to different sections:
- Part of Labor Certification Process
- What Is the Process for the Employer To Determine Prevailing Wage?
- Is It Possible to Estimate the Prevailing Wage?
- Other Requirements of the Prevailing Wage
- H-1B – typically professional positions with high skill levels
- H-2A – agricultural workers
- H-2B – non-agricultural workers
Part of Labor Certification ProcessBefore 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
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 prevailing rate for their advertised position will be. An attorney with prevailing wage law experience 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 WageBesides 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)
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