Employment Based Green Card through the PERM Process: Prevailing Wage Determination

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As immigration lawyers in Columbus, Ohio we receive numerous queries from clients as to how the PERM prevailing wage process is determined. The first crucial step for acquiring a Green Card through the PERM process is to receive a prevailing wage determination. A prevailing wage determination is essentially the median wage that is paid to workers in a specific job and in a specific geographical area. Federal law regarding the PERM process mandates that an employer applying to sponsor the immigrant petition of a foreign national must promise to pay that person an amount that is greater than or equal to the prevailing wage. In order to file the Labor Certification Application, the employer must have first filed for and received a prevailing wage determination from the government.

Which Agency Determines the Prevailing Wage for Labor Certification Applications?
Prevailing wage determinations are now handled by the Department of Labor through the i-Cert internet submission portal. When first introduced, submission through the i-Cert portal was intended to result in a prevailing wage determination being made within thirty (30) days. This has turned out to be a woefully inaccurate estimate of turnaround time. Prevailing wage determinations though the i-Cert system are now taking forty-five (45) days or longer to receive.

This new turnaround time is in stark contrast to what has historically taken place. Until January of 2010, prevailing wage determinations were given by the states through their respective State Workforce Agencies. When this system was in place, prevailing wage determinations were made within two or three days. As a result of the delay imposed by the new i-Cert system, the beginning of the PERM process can be delayed right from the start.

What is the importance of the prevailing wage in the PERM process?

The prevailing wage must be determined and the validity period must be current in order to successfully file for a Labor Certification. For years the Department of Labor has only required that the prevailing wage be current at the time of filing. However, recent reports have presented cases of the DOL denying a Labor Certification application because a prevailing wage was not made at least thirty (30) days prior to the filing of the application. This is disturbing news and would signal an arbitrary change in the way that the DOL has been deciding these cases.

The prevailing wage is necessary in order to draft the posting notice that is to be placed at the alien’s intended location of employment. This posting notice must have the offered wage or a wage range listed on the notice. The wage or range listed must be within the prevailing wage listed by the government. The posting notice requirement requires forty-five (45) calendar days to carry out. All of this takes a toll on the time periods allowed for filing.

Additionally, some states require the wage or wage range to be listed on the thirty (30) day job order. The state job order process can take from sixty (60 to ninety (90) days to complete. Needleless to say, all of these requirements impact the date of filing to a great extent.

What can be Done to Alleviate the Time Pressures caused by the DOL’s interference in the Prevailing Wage Process?

Simply put, apply for the prevailing wage early. Applying for the prevailing wage must now be done immediately after determining the requirements for the position. The position requirements must be full and accurate. Once the wage is determined and is utilized by the employer in the recruitment process, it will be very costly and time consuming to re-file. An adverse prevailing wage determination can be appealed, but it is anyone’s guess how long that process will take under the auspices of the Department of Labor.

How to Contact Us

If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.