• Hours & Info

    (562) 495-0554
    M-F: 8:00am - 6:00 p.m.
    Sat: 9:00 a.m. - 12:00 p.m.
  • Social

  • Past Blog Posts

DOL Will Only Accept Electronic Filings of Form ETA 9141 via FLAG System’

As of today, DOL only accepts electronic filings of Form ETA 9141, Application for Prevailing Wage Determination, through the new Foreign Labor Application Gateway (FLAG) System. Furthermore, beginning Thursday, June 13, 2019, H‑2B applications will be accepted via FLAG, and on July 3, 2019, all H‑2B applications must be sumbmitted via FLAG

Trying to petition a domestic worker?

  1. DOS released a cable stating that, effective immediately, all contracts for domestic workers must state an hourly wage to be paid to the worker, and the rate must be the greater of the minimum wage under U.S. federal, state, or local law. Consular officers will no longer be required to compare the prevailing wage and minimum wage to determine the appropriate wage in domestic worker contracts.

Don’t make small mistakes on PERM

  1. BALCA affirmed the denial of certification where the employer incorrectly entered the prevailing wage validity period on the ETA Form 9089 as less than the minimum 90 days required by 20 CFR §656.40(c). BALCA rejected the employer’s argument of harmless error, even though the prevailing wage determination issued by the State Workforce Agency did not include specific validity dates, and only indicated a validity period of “90 days from the date of this determination.”

Wage Issue with PERM?

BALCA reversed the Center Director’s prevailing wage determination, finding that, pursuant to 20 CFR §656.40, an otherwise qualifying employer-provided survey cannot be rejected based on the absence of an arithmetic mean wage.

DOL’s proposed rule on the prevailing wage methodology for the H-2B program

DOL’s proposed rule on the prevailing wage methodology for the H-2B program.

H-1B Specialty Worker Visa

If you have a college education and a sponsor in the United States, you may qualify for this visa. American Immigration permits this type of specialty occupation work visas. It can be approved in as fast as two to three months. This visa is usually issued for a period of three years. Should you decide to stay longer, it can be extended for another 3 years. There are a limited number of these visas per year, and therefore, if you have a sponsor, you should get started right away. As a sponsor, you must pay the prevailing wage to the employee. The prevailing wage is the wage that prevails generally and is the normal wage for that type of position. When the H-1B is being prepared, the government will let us know what is the prevailing wage.

If you later decide you want a green card, you can apply for ‘Labor Certification’ while you have your Specialty Occupation Visa. Your spouse and children can come to the U.S. once you are approved. Additionally, your children can go to school without any problem

What is the Prevailing Wage?

Question: I am applying for the new PERM, but am having a very difficult time figuring out what is the prevailing wage and how to figure out what level it is. Can you please explain?

Answer: There are four levels to any job. Level 1 (entry) is for beginning level employees who have a basic understanding of the occupation. They perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher-level work for training and development purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy.

Level 2 (qualified) wage rates are assigned to job offers for qualified employees who have attained – either through education or experience – a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. A Level 2 wage determination would be a requirement for years of education and/or experience

Level 3 (experienced) wages are for job offers for experienced employees who have a sound understanding of the occupation and have attained either through education or experience special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff.

Level 4 (fully competent) wage rates are for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and/or supervisory responsibilities.

Question: Does the amount of the prevailing wage change with the level it is at.

Answer: Most definitively. The higher the level, the higher the wage. This new system is preferable to the older system which had only two levels which were no experience and expert. Here, we have a more realistic way of assessing the experience so that someone with some experience will not have a wage that is much higher than their actual experience.

What exactly is the ‘Prevailing Wage’?

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.

PERM: What to do about the Prevailing Wage?

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.

%d bloggers like this: