Before a U.S. employer starts the application process of obtaining a labor-based U.S. green card for a foreign national, it must make sure that the salary or wages it plans to pay the person are normal for people in the same occupational classification and within the local job market. For example, if the foreign national will be hired as an aerospace engineer in Seattle, the employer needs to make sure it does not pay the person less than other Seattle-based aerospace engineers.
The purpose is to make sure that hiring low-cost immigrant labor doesn’t weaken the wages and working conditions of U.S. workers.
To find out this prevailing wage information, the employer must electronically submit DOL Form 9141, called a prevailing wage request (PWR), to the U.S. Department of Labor’s national office. (Note that this submission procedure represents a change from the pre-2010 system, in which PWRs were submitted via a State Workforce Agency, or SWR.)
PWR submission can be done either by mail or via the iCert Web portal (where the employer will need to create an online account). The employer will need to supply a complete description of the position for which it intends to employ the foreign-born worker.
The DOL’s response (the prevailing wage determination, or PWD) will tell the employer how much is normally paid to people in jobs equivalent to the one the foreign national has been offered. The determination is good for only a limited amount of time, depending partly on when the DOL does its annual updating of wage information.
Finding out the prevailing wage is a crucial step, because the employer must offer at least this amount in the labor certification process. Even if the employer is offering a wage the DOL would find appropriate, a PERM labor certification application can be denied if the DOL learns that no formal PWD was issued. (This is different from the process of obtaining an H-1B or other nonimmigrant work visa, where no formal DOL statement of prevailing wages is absolutely required.) And because many factors go into a wage determination (such as geographic location, job title, discipline, job duties, required education, and so on) it is not possible to predict the exact amount of the prevailing wage until the DOL provides it.
For more on the PERM process, see the Labor Certification section under Employment-Based Immigration.
How long it will take to get a response depends on how backed up the DOL is. Unfortunately, attorneys regularly report waiting four to eight weeks to receive an answer. This can create problems in the timing of the employer’s recruitment efforts and application for PERM labor certification.
If the employer believes that the PWD determination is wrong, it can challenge the finding. This is done by requesting what’s called a redetermination through the iCert Web portal. If the redetermination request is denied, the employer may, within 30 days, continue on to request review by the Center Director. If the answer is again negative, the employer may file an appeal with the Board of Alien Labor Certification Appeals (BALCA). Not surprisingly, this process is likely to take at least a year to complete.