Alternate Sources for PERM Prevailing Wage Determinations

In applying for a PERM labor certification, an employer first must request a prevailing wage determination from the U.S. Department of Labor (DOL). Although prevailing wage determinations typically are based on internal DOL data, there are times when an employer may be required or have the option to use a different wage source for a prevailing wage determination.

Overview of a PERM Prevailing Wage

The first stage of the PERM process is the employer’s requesting a prevailing wage determination from the DOL using form ETA-9141, application for prevailing wage determination. Once received, the prevailing wage determination establishes the minimum wage the employer can offer for the sponsored position when conducting the mandatory PERM recruitment, which is the same minimum wage the sponsored employee must be paid upon becoming a lawful permanent resident (i.e., receiving a green card) and working for the sponsoring employer.

DOL Wage Determination System

A prevailing wage is determined using data collected under the DOL Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) Program, and is based on a three-part framework. First, the nature of the job offered, classified per the standard occupational classification (SOC) system, which considers a position’s job duties and specific vocational preparation requirements. Second, the area of intended employment, or the area within normal commuting distance of the intended worksite. And third, the wages received by workers employed in comparable positions within the same geographic area.

Alternate Wage Sources

A prevailing wage determination will be based on OES data unless another wage source is provided. Depending on the circumstances, an employer may be required to or have the option to provide alternate data for a wage determination.

Private Wage Surveys

In some cases, the OES data can reflect a higher wage than the actual average wage for a position in a certain area. In such a case, an employer may provide the DOL with a privately published wage survey conducted or funded by the employer. The private wage survey must be recent, such that it was published within 24 months of the prevailing wage request, and must be based on data collected within 24 months of the survey’s publication. The wage data also must be based on a sufficient sample size of workers who are similarly employed across any applicable industries in the area of intended employment. The employer’s requested wage determination should be the arithmetic mean of the collected wage data.

Private wage surveys can be either submitted with an initial prevailing wage request or with a request for reconsideration of a prevailing wage determination initially issued using OES data. An employer must provide the DOL with the methodology used to conduct the private survey to demonstrate the survey’s compliance with reasonable statistical standards.

Collective Bargaining Agreements

When a position is covered by a collective bargaining agreement (CBA) negotiated between a union and the employer, the DOL must use the wage rate contained in the agreement for the position. When filing the ETA-9141, an employer must disclose the existence of the CBA and submit a copy of the relevant CBA sections with the prevailing wage request.

Professional Athletes

If the sponsored position is for a professional athlete and is covered by a professional sports league’s rules or regulations, the DOL must use the wage dictated by the league’s rules or regulations. A professional athlete means an individual employed as an athlete by a member team of an association of six or more professional sports teams with total combined revenues exceeding $10 million per year, or by a minor league team affiliated with such an association.

Federal Contract Acts

An employer covered by the Davis-Bacon Act for a federal construction project, or McNamara-O’Hara Service Contract Act for a federal service project, may request that the DOL use the current contracted wage under the applicable act for the PERM prevailing wage determination. However, a covered employer is not required to make this request and may request an OES-based prevailing wage instead.

Conclusion

While most prevailing wage determinations use OES data, there are cases in which an alternate wage source may be required or preferred. Considering the nuanced circumstances of each PERM case, it is important to consult a knowledgeable attorney to maximize the likelihood of success during the PERM process.

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