What is a prevailing wage?
A prevailing wage is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Prevailing wage rates are grouped in levels that correspond to the education and experience level of the employee.
In 1998, the Department of Labor’s (“DOL”) Bureau of Labor Statistics (“BLS”) began to collect wage data under the Occupational Employment Statistics (“OES”) program for use in the Foreign Labor Certification process. Each year’s data is published in July of the following year, so the prevailing wages will be updated to reflect 2023 data this month.
Why are prevailing wages required?
The Immigration and Nationality Act (“INA”), passed by Congress in 1965, requires that the hiring of a foreign worker not adversely affect the wages and working conditions of U.S. workers who are similarly employed. To comply with this law, DOL regulations were updated to require that the wages offered to a foreign worker must be at least the prevailing wage rate for the occupational classification in the area of employment.
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Are prevailing wages required as a part of all petitions?
No. Only H-1B, H-1B1, H-2B,and E-3 petitions require a certification from the DOL that the employer will pay at least the prevailing wage. Additionally, obtaining a prevailing wage determination is usually the first step in the PERM process. Read more about the PERM process here.
How are prevailing wages obtained?
For nonimmigrant petitions, such as H-1B or E-3 petitions, the prevailing wage for the position will usually be obtained from the Foreign Labor Certification (“FLC”) Data Center’s Wage Search Wizard. This allows the individual obtaining the prevailing wage to narrow by state, county, and occupation to obtain the prevailing wage rates for each level.
As part of the PERM process, the individual obtaining the prevailing wage must submit a form to the National Prevailing Wage Center (“NPWC”), which processes the request and issues the prevailing wage. As of January 2024, these requests are taking approximately 9-11 months to be processed.
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Are there other options for determining the prevailing wage?
Employers can use “alternative wage surveys” to obtain a prevailing wage. To be eligible for use as a prevailing wage determination, the survey must:
- Provide sufficient information on the survey’s methodology, including sample size, sample selection procedures, and job descriptions used
- Be published within 24 months of its use as a prevailing wage determination and based on data collected within 24 months of publication
- Provide the average of the wages of employees similarly employed in the area of intended employment
- Collect data across industries that employ workers in the occupation
- Be for the area of intended employment
- Use job descriptions that match that of the anticipated position
- Survey at least 3 employers and at least 30 employees
Please don’t hesitate to contact Zulkie Partners if you have questions related to the new prevailing wages after they are released or about using an “alternative wage survey.”