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What exactly is the ‘Prevailing Wage’?

Posted on June 18, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: What changes to the prevailing wage process are caused by the H-1B Visa Reform Act of 2004?

Answer: The two changes to the prevailing wage determination process for foreign labor certification due to the H-1B Visa Reform Act (effective on March 8, 2005) are: The wage required to be paid shall be 100 percent of the prevailing wage; and where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

Question: What changes to the prevailing wage process are caused by the publication of the Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?

Answer: The PERM regulation (effective date of March 28, 2005) modified the prevailing wage determination process in three significant ways. (1) The use of Davis-Bacon or the McNamara-O’Hara Service Contract Act is no longer controlling for prevailing wage determinations although an employer may request that either be considered as an employer-provided wage source. (2) If an employer-provided survey does not contain an arithmetic mean, and only provides a median, the median wage figure can be used for determining the prevailing wage.

Question: When and where does the employer obtain prevailing wage information when filing a PERM application?

Answer: Prior to filing the Application for Permanent Employment Certification, ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET(OES) code, the occupation title, the OES skill level (if applicable), the wage source, the determination date, and the expiration date.

Question: How do employers get a prevailing wage if filing an H-1B, H-1B1, or E-3 Labor Condition Application?

Answer: The Immigration and Nationality Act provides that, unlike the other labor certification programs, the employer has the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information.

Question: How do employers get a prevailing wage if filing an H-2B temporary nonagricultural labor certification application?

Answer: Employers have the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information. Otherwise, the prevailing wage for an H-2B application is provided by the SWA as part of the standard processing of the application.

Question: Can wage information be obtained over the telephone?

Answer: No. Prevailing wage determinations will not be provided over the phone. All prevailing wage determinations provided by the State Workforce Agencies must be in writing.

Question: Where can an employer get a prevailing wage request form from the State Workforce Agency (SWA)?

Answer: Employers must request and receive the determination of the prevailing wage from the SWA having jurisdiction over the geographic area of intended employment. Many SWAs provide prevailing wage request forms electronically through their own websites. If the form is not available electronically, the employer should contact the SWA representative and request the form be faxed or mailed.

Question: What are the primary factors to be considered in making the prevailing wage determination?

Answer: Determining the appropriate wage level depends on full consideration of the experience, education, and skills required by the employer as indicators of the complexity of the job duties, the level of judgment required and the amount of supervision involved. The step-by-step process provided in the guidance is not intended to be an automatic process. The wage level assigned to a prevailing wage request should be commensurate with the wage level definitions.

Question: How does the SWA determine the prevailing wage?

Answer: If the SWA determines the job opportunity is covered by a collective bargaining agreement (CBA) negotiated at arms length and a wage rate has been negotiated under the agreement as evidenced by information provided by the employer, than the CBA wage rate is the prevailing wage.

Question: Are the SWAs instructed to process prevailing wage determinations on a first in, first out (FIFO) basis?

Answer: SWAs generally process prevailing wage determinations on a FIFO basis.

Question: What is the average processing time for the SWA to respond to a prevailing wage request?

Answer: Although the time frames vary from state to state due to the number of requests pending at the time of submission, SWAs generally provide responses within 14 business days of the receipt of the request. If the employer provides its own survey, responses to such requests are generally done within 30 business days of the receipt of the request.

Question: How can an employer check the status of a prevailing wage request?

Answer: An employer can check the status of a prevailing wage request by contacting the SWA. However, an employer should take into consideration the fact that frequent calls to the SWA may result in more time responding to such requests rather than processing the request itself.

Question: Does the offered wage need to be included in the advertisement?

Answer: The offered wage does not need to be included in the advertisement for applications for permanent labor certification, but if a wage rate is included, it must be at or above the prevailing wage rate. The wage offer does need to be stated in the advertisements for H-2B applications.

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Can I Substitute in another employee?

Posted on April 23, 2025 by Brian D. Lerner, Immigration Lawyer & Deportation Attorney

Question: My Company was petitioning in an employee for the Labor Certification. We have waited years for this employee to come and work for us. However, last month he told us that he was no longer interested in the job. We feel somewhat betrayed as we waited all this time for his Labor Certification to go through. It has been certified by the Department of Labor and we do not now have an employee for the position. Must we completely start over?

Answer: Actually, it is not necessary that you start all over with another future employee. As you know, the Labor Certification is a procedure whereby a person can be petitioned by an employer for future employment. For those that cannot be petitioned through a family member, this is often the best way to eventually get a Green Card or Lawful Permanent Residency. However, as I am sure you have discovered, the employer and the employee have to cooperate for several years for the eventual success of the Labor Certification.

Now that you have an approved Labor Certification for your company, normally you would file the Employment Petition and then the Adjustment of Status application or the Consulate Processing application if the person is outside the U.S. However, since your future employee is no longer wanting or willing to go through with the rest of the procedure, you would normally have to start over the entire process from the beginning.

However, there is an exception. If you can find another future employee who has the same basic qualifications and will work in the same position, then you can substitute in this employee.

Question: What exactly do you mean to ‘substitute’ in the new employee?

Answer: This term is exactly what it refers to. Without starting from the beginning, another person can just jump into the shoes of the previous employee (who no longer wants to continue) and start from where he left off. This means, you do not need to do another Labor Certification, nor do you need to wait all those years to continue. You simply continue forward with the new employee.

Question: This sounds too good to be true. Why would the law allow this?

Answer: It is because the Labor Certification itself does not really have anything to specifically do with the employee. The Labor Certification process merely shows that there are no qualified workers to fill the position. Therefore, when the job has been certified by the Department of Labor, it means that there has been successful proof that that particular job cannot be filled. Thus, if you find another person seeking to work for you to fill the position with the same qualifications, he or she can now just continue. This is a very useful, but not very well known provision that permits you to do this. If you do everything correctly, you should have a new employee working for you in a very short time.

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