Question: I know that PERM is the new way for Labor Certifications to be done. However, I am unclear how to determine what type of wage should be paid for the position. Can you clarify?
Answer: This would be known as the prevailing wage. This is typically the same wage that someone of similar type experience in a similar type job receives. The way of doing the prevailing wage is considerably different from the previous method of doing a Labor Certification. State Workforce Agencies (SWAs) will provide prevailing wage determinations to employers, but will no longer receive or process applications as they do under the current system. Each State has its own methods, but they will send back to the requester a written confirmation of what is the prevailing wage for this type of position.
One difference is that in the past, the employer could pay 95% of the prevailing wage. Now, the employer must pay 100% of the prevailing wage.
Question: I heard that in the past, the typical surveys from the government have only two levels of wages that were paid. First, was the no experience and next was the completely experienced. There was nothing in between these levels. Is that system still in place?
Answer: No. The new regulations have realized that it is not realistic to have only 2 levels of wages. Therefore, where a governmental survey is used to determine prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels as do most of the actual surveys at this point, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.
This certainly sounds somewhat complicated. However, let us take an example. Suppose the position is for a computer programmer and the wage for the two levels is as follows: No experience is $30,000 per year and completely experienced is $70,000 per year. Under the approach stated above, we would take the difference between the two levels ($70,000 – $30,000) which would be $40,000 and divide that amount by 3. Thus, $40,000 divided by 3 would be about $13,333. Thus, the first level would remain $30,000. The second level would now be $30,000 plus $13,333 which would be $43,333. The third level would now be $70,000 less $13,333 which would be $57,666 and the fourth level would remain the same at $70,000. Therefore, now with the same government survey, it is now possible to have four different levels of wages which is much more realistic to correlate experience with pay.
Question: What if an employer does not want to use the SWA analysis of the prevailing wage?
Answer: It is possible to submit another private wage survey. However, it has several requirements and can be quite labor intensive to determine if it satisfies what is necessary to show the prevailing wage.
Question: What if I disagree with the prevailing wage given by the SWA?
Answer: You can appeal that determination. However, that will most likely considerably delay your PERM application. Therefore, you should strongly consider going with the SWA determination of the wage if it is in the ‘ballpark’ of what the wage should be.
Question: When must the employer start paying the prevailing wage?
Answer: It would be only after the Labor Certification has been certified and the prospective employee actually has his or her lawful permanent residence.