（Author: Jian Joe Zhou and Andrew Durham）In PERM green card processing, a DOL determined prevailing wage is a mandatory element for case filing. Prevaing Wage is a key factor impacting the employer's decision to initiate labor certification sponsorship, the employer's ability to pay a position's salary, the employer's decision of position level (eventually impacting the EB-2 or EB-3 preference categories), and many other technical details in PERM filings.
In many instances an employer would like to know the estimation of the prevailing wage before a sponsorship decision is made. It is the employer's obligation to pay the offered salary no later than the time when the green card is approved, so knowing the prevailing wage early will allow the employer to decide if they are able to provide such a salary. PWD is also a crtical issue for the alien beneficiary since it will affect whether or not he/she can receive the sponsorship at an EB-2 level (most EB-2 positions require at least level 2 salary) which may result in many years of difference in receiving a green card.
The Department of Labor's National Prevailing Wage Center (NPWC) determines the prevailing wage for a position based on an occupational title, geographic location of job opportunity, and an employer's additional requirements for employment. Each of these components of a PWD will make a similarly classified position pay differently based on where in the U.S. work is to be done and how many additional requirements an employer lists for a position. Standard Occupation Code (SOC) job title, location of employment, education, experience, required travel, supervision/consulting duties, special licenses, and foreign language knowledge are the most common factors that have the greatest effect on a PWD.
SOC job title and location are the precursory steps made by the NPWC in determining the base salary for a PWD. After the specific title and area of employment are established the Wage Level of a position will be impacted by additional employer requirements and duties that are beyond what is considered "normal" for an SOC.
Title of Occupation
In determining the prevailing wage the NPWC first finds the appropriate SOC title for the position being filed for based on job requirements and duties listed by a petitioning employer. Some occupational codes may share similar duties and requirements but have different job wages.
Example: In the Houston, Texas area an entry-level Geneticist earns an average of $35,110 a year. An entry-level Natural Sciences Manager earns $72,093 a year on average, more than twice that of a geneticist. Both positions involve lab work, managing research, and supervising staff. However, there is a remarkable difference in pay between them. This shows the importance of having the right requirements for the right position, as seemingly similar and related SOC titles may have substantially different wages.
The PWD will be issued by the NPWC based on the most appropriate SOC job title and requirements, NOT solely on the title that the employer lists for a position. When requesting a PWD an employer lists a "suggested" SOC occupational code/title. The NPWC will then determine whether the suggested occupational title is appropriate for the duties required by the employer. So, duties of the position control the DOL assignment of SOC Occupation Code, while an employer's internal job title may help DOL wage officer to make a decision.
Example: A petitioning employer may request a PWD for a position that it has titled "Vice President of Communications." However, in actuality, the job duties are only those of a receptionist. The employer may personally call the position by many names, but since a receptionist does not have the skills or supervisory duties of a Vice President, the NPWC will not determine a prevailing wage based on what the employer chooses to label a position alone.
However, when different SOC titles share some similar duties, the employer's suggested title may have a persuasive role on the job title the NPWC ultimately selects. A properly suggested job title can sway the NPWC to select the employer's title when there are similarities between SOCs.
Location of Employment
A PWD will give a salary based on the geographic location of intended employment. Since the OES determines prevailing wages for all jobs all over the United States the prevailing wage for an occupation will vary depending on the location of the opportunity for employment. For example: an entry-level computer programmer position in New York City has an average yearly salary of $52,478 while the same position in Des Moines, Iowa has an average yearly salary of $36,774.
In most cases, the geographic area of employment refers to the location where work is actually being done. If a company is headquartered in one city but it is recruiting for permanent employment that will be conducted in a branch office in another metropolitan area, the real work location should be identified and DOL will assign the salary based on the data of that geographic area. Companies that hire for consulting or other positions with multiple or unfixed work locations (so called roaming positions) the PWD should be filed based on the company's main office.
Increases to Wage Level
Once an entry-level wage based on job title and area of intended employment is established, additional requirements will cause the wage to increase. There are 4 Wage Levels per occupation title. The more experience, education, special skills, and supervisory duties required by the employer the higher the wage level will be in a given geographic area. Each occupational title starts out at Wage Level I (lower paying, entry-level positions). For each additional requirement over the standards listed by a SOC, the wage level will increase until the maximum Wage Level IV is reached.
Example: An entry-level, Wage Level I Civil Engineer in New York City earns on average $60,861 a year. In comparison, a fully competent, Wage Level IV Civil Engineer in New York City earns an average yearly pay of $105,082. Not all Civil Engineers have the same job requirements and duties, even if their SOC title is the same. So, if a particular Civil Engineering job requires more experience, education, or other skills, licenses and/or duties than an entry level position the rate of pay will increase accordingly.
The following is a list of the most common reasons for a Wage Level increase:
1. Education: For every degree higher than the standard that is required by the SOC the Wage Level will increase by 1.
2. Experience: The Wage Level will increase depending on how much experience is required in comparison to what is standard for an SOC's entry-level position.
3. Beyond Normal Requirements: Additional skills, job duties, travel, and licenses will, in most cases, increase the Wage Level per additional requirement.
4. Supervising: Supervisory requirements for a position that are not listed by the DOL in the same or similar occupations will raise the Wage Level by 1.
The highest Wage Level for a position is IV. This means that additional requirements will NOT continue to raise the Wage Level once it has increased to level IV. However, these additional requirements should still be listed when requesting a PWD to ensure consistency throughout a PERM application.
Example: An employer requests a PWD for a Graphic Designer position. This position usually requires a bachelor's degree and between 2 and 4 years of related experience. The employer requires a Master's degree, no years of experience, and knowledge of Mandarin to communicate with the company's other employees and client base. Since most similar positions only require a bachelor's degree but the employer is requiring a Master's degree, this will increase the Wage Level by 1. Since knowledge of a foreign language is not inherent in a Graphic Designer position, the required ability to speak Mandarin will further increase the Wage Level by 1. Since the employer is not requiring any experience the wage level will not increase any further. In total the Wage Level will be increased by 2, which will make the employer's position listed at Wage Level III.
Effects of education on the Wage Level
The wage level of a position will increase for every degree required that is more advanced than the SOC's standard. For example, if a bachelor's degree is usually required but an employer is requiring a Master's degree, the Wage Level will increase by 1, and if a PhD is required, the wage level will increase by 2. If a bachelor's degree is usually required but the employer has no minimum education requirement or only requires a bachelor's degree, then the Wage Level will not increase and will remain at level I. Similarly, if a Master's degree is usually required but an employer is asking for a PhD for a position, the Wage Level will increase by 1.
Not only will the education requirements of a SOC title affect the wage level of a position, but it will also affect whether a job opportunity can qualify as EB-2 or EB-3 for later "green card" processing. EB-2 positions require an advanced degree (Master's or higher) or a Bachelor's degree plus 5 years of experience as a minimum requirement for the position. An experienced attorney will be able to find the highest education category SOC occupation that fits the employer's requirements and ability to pay in order to obtain future EB-2 status for the foreign national. For a further discussion of EB-2 and EB-3 immigrant statuses, click here.
Effects of experience on the Wage Level
Each SOC occupation has a corresponding range of experience that is usually required for an employee to adequately perform the job's duties. A PWD will reflect how much experience is required by an employer compared to what is standard. Generally, the more experience required by an employer for a position, the higher the job wage will be.
For example, some EB-2 qualified positions have a standard experience range of 2-4 years. If an employer requires 2 years or less experience for a position the wage level will not be increased and will remain at entry level. However if experience beyond 4 years is required the position will increase by 3 to the maximum wage level of 4. Any experience within the range will also increase the wage level depending on how many years are required.
Effect of Special Skills, Additional Duties, Licenses, and Supervising on Wage Level
Licenses - If any employer requires special licenses that are not inherent in the SOC job requirements, the wage level will increase accordingly. Certain occupations (such as lawyers and doctors) have special licenses that are required for the position, so these will not affect the Wage Level. However, for an accountant, as it is not necessary to require a license, requiring a CPA license will increase the wage level by one.
Travel - The DOL's PWD guidelines do not make specific reference to travel in calculating Wage Level. There are some occupations (such as some engineers or salespeople) in which visiting different worksites may be considered part of the standard occupational requirements. In such cases, a travel requirement for a position may not necessarily affect the Wage Level of the PWD.
For positions which do not list in any way travel in their occupational standards, if an employer requires an employee to travel for a position the Wage Level will usually increase. Since DOL guidelines do not directly address the issue of travel for PERM related PWDs the issue of travel can seem unclear. However, experienced attorneys will know, based on previous practice, which positions can require a certain amount of travel as inherent to the job.
Supervising - If an SOC does not list supervisory standards for an occupation but an employer requires the proffered PERM position to supervise other employees, this will increase the Wage Level by 1.
Foreign Language - Generally, if an employer requires an applicant to have knowledge of a foreign language the Wage Level will increase by one. Certain positions (Translators, Foreign Language Teachers and Instructors, and Caption Writers) have inherent foreign language requirements and the Wage Level for these positions will not increase because of requiring foreign language knowledge.
The Wage Level for positions that do not have foreign language knowledge as part of their SOC occupation requirements will increase by 1 if a language other than English is listed as an employer requirement. In such cases a petitioning employer will need to be able to show why knowledge of a foreign language is necessary for a given position.
A PWD determines both the wage to be paid for a position and the corresponding DOL occupational title of the petitioned position. For both the employer and the employee it is beneficial to acquire the highest level job category with the lowest PWD. An employer may not be able to pay the higher wage that additional education and experience require, but an employee may benefit from a higher job category that is suitable for EB-2 filing but with level 1 salary. An employer will need to prove the ability to pay the offered wage for a PERM position and an employee will want to qualify for EB-2 status if possible in order to receive a green card sooner. Attorneys with PERM experience will be able to find the right balance between rate of pay and high qualifications to meet the needs of both employer and employee.
Attorneys with extensive PERM experience will also be able to make a preliminary decision of a likely PWD based on similar occupations for past PERM cases. This expertise will make selecting the appropriate occupational code and Wage Level much easier if a petitioning employer has job requirements that are not considered "normal". Additionally, this expertise will make the recruiting process much smoother since an employer will be able to have some idea of what job description, requirements, and wages are suitable for a position before an official PWD is received.
A PWD has both short term and long term effects for an alien beneficiary. It is a requirement of PERM applications and also has lasting influence on future immigration petitions if a labor certification is granted and the employer has to show the financial ability to pay the offered salary. As such, it is imperative that the proper requirements are listed for a position's PWD. For employer's and potential beneficiaries of PERM petitions it is recommended that an experienced attorney be contacted to assist in the filing process. Such an attorney will be able to answer any PWD questions and potentially start preliminary recruiting procedures in advance of an official PWD, saving crucial time in the exacting PERM process.
References: ETA - Prevailing Wage Determination Policy Guidance (November 2009)
Attorney Jian Joe Zhou is a Co-managing attorney at Zhang & Attorneys L.P. Joe is one of the leading practitioners in PERM and pre-PERM labor certification petitions, especially in assisting small and mid- sized businesses. With more than 12 years of experience in employment and business immigration law practice, Joe is an expert in PERM, EB-1, NIW, and EB-5 immigration petitions as well as in H, L, and E worker visas. He may be reached at email@example.com
Andrew Durham is a law clerk at Zhang & Attorneys, L.P.