Prevailing Wage Requirements in Employment Based Immigration Matters
Who is required to pay the prevailing wage?
Employers who are petitioning to get green cards for foreign workers are required to pay at least the prevailing wage for the position, if the petition requires an employer and the filing of the Department of Labor’s Form ETA 9089. This includes EB2 cases, EB3 cases, Schedule A cases including nurses, and Other Worker cases.
This is also the minimum wage that must be offered to any qualified applicants for the position.
Also required to pay at least the prevailing wage are employers petitioning for H-1B workers. These employers must pay the higher of the prevailing wage for the position, or the actual wage they pay other workers in the position.
What is the prevailing wage for immigration purposes?
For immigration purposes, the prevailing wage is the mathematical mean of the wages normally paid for the type of position where the position is located.
How is the prevailing wage for immigration purposes determined?
For immigration purposes, the prevailing wage is always determined by the US Department of Labor
The Department of Labor will determine the prevailing wage based on their own surveys, published surveys provided by the petitioning employer, or based on a Collective Bargaining Agreement.
For positions that are subject to a union or collective bargaining agreement, the Department of Labor will examine the job title, duties and requirements of the position and will compare them against the collective bargaining agreement to determine what that agreement requires as the wage for the position.
For positions that are not suject to a union or collective bargaining agreement, the Department of Labor will use its own surveys, unless the employer submits a survey.
The Department of Labor’s surveys have four different levels and the Department of Labor will chose the level they believe is appropriate based on the requirements for the position. They will chose the occupational classification based primarily on the job description for the position.
For employer submitted surveyes, the Department of Labor will first examine the survey methodology to see if it meets its requirements. If it does, the Department of Labor will then use the job description to see if it fits that of the position the survey surveyed.
For immigration purposes the prevailing wage that is based on a survey, is the arithmetic mean of the wages of workers similarly employed. In other words, the wages of all surveyed employees are added up and the result is divided by the number of surveyed employees. In some limited cases, the Department of Labor will accept surveys that are based on the median wage, if that survey reflects the median wage and does not provide a weighted average.
At what point in the process is the prevailing wage obtained?
Obtaining the prevailing wage for the position must be done at the very beginning of the process, as this is the minimum wage that will need to be offered to any applicant that responds to the required ads.
For H-1B petitions, it must be obtained prior to the filing of the Labor Condition Application.