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Determining the Prevailing Wage in Labor Certification Cases

by Carl Shusterman

This is one of the most crucial and confusing issues in the successful processing of labor certifications. Once a position is certified, the rest of permanent residence processing for that foreign national is based on the statements contained on that application. Technically, the employer must pay the prevailing wage once the foreign national is granted legal permanent residence. However, practice shows that if the supporting documentation submitted with the permanent residence application demonstrates that the foreign national is earning less than the prevailing wage, the INS will be skeptical that the prevailing wage will be paid after permanent residence is granted. This will hinder the overall success of the legal permanent residence application.

Labor certification applications are built around the ETA-750A form (Offer of Employment), which outlines the specifications of a job being offered to a foreign worker. This form, together with other materials, is submitted to the State Workforce Agency (SWA) with jurisdiction over the work site. The wage offered on the form must meet or exceed 95% of the prevailing wage for the position in the geographic area where the duties are performed.

As part of labor certification processing, the SWA will check the wage offered against current wage data to ensure that it is in line with prevailing wages for that specific position and geographic region. As we saw with H-1B prevailing wages, the figure isn't always what the employer expects it to be.

In order to preview the determination the SWA will make regarding the wage offered, the employer can choose to submit a request for a prevailing wage determination directly to the SWA. Each State's SWA is different, but most have a fax form available online for requesting prevailing wage determinations. For example, the form in California may be accessed online at:

http://www.calmis.cahwnet.gov/htmlfile/programs/pwformnw.pdf

If the wage offered on the ETA-750A is within 95% of the wage determination issued by the SWA, there will not be a concern, and the employer can feel confident submitting the ETA-750A.

If the employer chooses not to request a prevailing wage determination before filing, there is a risk that the SWA will find that the wage offered on the ETA 750-A is too low. In such a case, the SWA will issue an "Assessment Notice". On one hand, this slows down processing. On the other hand, it gives the employer an opportunity to either adjust the wage or present evidence that the wage offered is in line with the prevailing wage.

The employer has limited options to find an alternative figure that the SWA will accept. Since the figure comes straight from the SWA's own research, how can it be challenged?

First, double-check the SWA's figure. Each SWA obtains their prevailing wage data from the Department of Labor's Occupational Employment Statistics/Standard Occupational Classification (OES/SOC) online database. This is their default source for prevailing wage data, and they view it as the most authoritative source. We link to the Department of Labor's Online Wage Library through our "Department of Labor" page at:

http://shusterman.com/toc-dol.html#9

OES/SOC figures are not always accurate or realistic. There are inherent problems collecting data, and the only categories are for entry-level and experienced-level positions. Mid-level positions are not reflected in the presentation of the data at all. This flaw is inherent in the OES/SOC system. In rare cases, the SWA may have chosen a figure from the wrong job category, which can easily be corrected.

If the OES/SOC figure seems accurate on its face, what is the next level of authoritative wage data? The U.S. Department of Labor (DOL) has a wage database, compiled by their Bureau of Labor Statistics (BLS). We link to the BLS homepage from our Department of Labor page at:

http://shusterman.com/toc-dol.html#9

Start at the BLS homepage, then follow these links, in the following order:

  1. Wages By Area And Occupation (can be found on the left side of the page, beneath "Wages, Earnings and Benefits")
  2. For Pay Setting Purposes
  3. Get Detailed Statistics
  4. Create Customized Tables - One Screen
This data is an acceptable alternative to the OES in every state. However, there are some guidelines as to which DOL/BLS data is acceptable. Look carefully at their tables. Firstly, appropriate data must be "published" data, which generally doesn't show a level. Secondly, it must have been published within the previous two years. Thirdly, their "Modeled Estimate" data is not acceptable for pay-setting purposes, unless it is also clearly labeled as "published" within the last 2 calendar years.

If the DOL/BLS data doesn't yield an acceptable figure, the employer can turn to a private survey such as the Employers' Group or Watson Wyatt. However, all SWA's adhere to very specific criteria that any private wage data must meet before they will use it in place of the OES wage data:

  1. The survey data must have been collected within the last 24 months.
  2. If it is a published survey, the survey must have been published within the last 24 months.
  3. The survey must cover the Metropolitan Statistical Area where the duties are performed ("Regional" or "Statewide" data are unacceptable).
  4. A copy of the job description must be included, and must adequately match the job as described on the ETA-750A.
  5. The survey must represent samples taken from across industries that Employ workers in the occupation.
  6. The wage determination must be based on an arithmetic mean (weighted average).
  7. The survey must identify a statistically valid methodology that was used to collect the data.
  8. If the employer cannot determine whether a particular survey meets these criteria, they can call the SWA and double check with them before relying on the survey to establish a prevailing wage.
If no adequate private survey can be found, the employer can conduct its own survey. Depending on the cooperation afforded by the employer's peers, this may or may not be easy to accomplish. An employer-conducted survey must meet the following criteria:

1. It must have been completed within the last 24 months. 2. It must contain the names and addresses of the employers contacted. 3. The names and phone numbers of the persons contacted must be provided. 4. It must include a copy of the job description provided to all employers contacted. 5. A clear definition of the experience levels used in the survey must be provided. 6. Data must include the number of employees at each experience level for each employer. 7. Data must include the exact wage for each employee. 8. Data must be collected from eight different employers within the specific geographic area of the job site, and across industries using the same occupation.

We have heard complaints that SWAs often use these guidelines for private and employer surveys to reject employers' attempts to provide alternative prevailing wage figures to those provided by the OES/SOC data. However, in practice, we have rarely experienced a problem where the alternative data presented conforms to the criteria outlined above. When in doubt, contact the SWA to review the alternative data with them in order to be confident that it will be accepted.


About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017
http://www.shusterman.com/


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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