Foreign Labor Certification Prevailing Wages

Foreign Labor Certification
Prevailing Wage Determinations for Nonagricultural Programs
Frequently Asked Questions
August 1, 2005

Background

The prevailing wage rate is defined as the average wage paid to similarly employed workers in the requested occupation in the area of intended employment. This wage rate is usually obtained by contacting the State Workforce Agency (SWA) having jurisdiction over the geographic are of intended employment or from other legitimate sources of information, such as the Online Wage Library.

The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers working in the occupation in the area of intended employment. To comply with the statute, the Department's regulations require the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

The requirement to pay prevailing wages, as a minimum, is true of most employment based visa programs involving the Department of Labor. In addition, the H-1B, H-1B1, and E-3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.

The Department of Labor, Bureau of Labor Statistics (BLS) provides wage data collected under the Occupational Employment Statistics (OES) program for use in the Foreign Labor Certification process since 1998. This data is available on the Foreign Labor Certification's Online Wage Library (OWL).

The Standard Occupational Classification (SOC) is used by the OES program to classify occupational wage information. The SOC provides a common language for categorizing occupations and serves as the framework for information gathered through the Department of Labor's Occupational Information Network (O*NET). The O*NET provides information on skills, abilities, knowledge, tasks, and work activities associated with SOC occupations.

The implementation of the H-1B Visa Reform Act of 2004 and the publication of the PERM regulation on December 27, 2004 have changed the prevailing wage determination process for the Permanent, H-1B, H-1B1, E-3, and H-2B programs. The Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs summarizes these changes and provides the step-by-step procedure for selecting the appropriate wage level for prevailing wage purposes. The following section provides responses to frequently asked questions regarding the implementation of the policy guidance.

Table of Contents

1. Changes to the Prevailing Wage Determination Process
2. Obtaining a Prevailing Wage Determination
3. State Workforce Agency (SWA) Responsibilities
4. Employer Responsibilities
5. Wage Determinations Using Occupational Employment Statistics Wage Data
6. Step-by-Step Process for Determining the OES Wage Level
7. Online Wage Library
8. Employer-Provided Wage Surveys
9. Challenges to Prevailing Wage Determinations

I. Changes to the Prevailing Wage Determination Process

1. Question: What changes to the prevailing wage process are caused by the H-1B Visa Reform Act of 2004?

Answer: The two changes to the prevailing wage determination process for foreign labor certification due to the H-1B Visa Reform Act (effective on March 8, 2005) are:

• The wage required to be paid shall be 100 percent of the prevailing wage; and
• Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision.

2. Question: What changes to the prevailing wage process are caused by the publication of the Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?

Answer: The PERM regulation (effective date of March 28, 2005) modified the prevailing wage determination process in three significant ways. (1) The use of Davis-Bacon or the McNamara-O’Hara Service Contract Act is no longer controlling for prevailing wage determinations although an employer may request that either be considered as an employer-provided wage source. (2) If an employer-provided survey does not contain an arithmetic mean, and only provides a median, the median wage figure can be used for determining the prevailing wage. Employers may continue to submit published surveys from public or private sources or employer-conducted surveys as long as the survey complies with the criteria in Appendix F of the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs. Although the Occupational Employment Statistics prevailing wage data will be provided for four skill levels, employer-provided surveys are not required to contain multiple levels. (3) Employers that disagree with their prevailing wage determination are afforded only one opportunity to provide supplemental information to the SWA. Employers may choose to file a new request for a wage determination or request review by the Certifying Officer and the Board of Alien Labor Certification Appeals.

II. Obtaining a Prevailing Wage Determination (Table of Contents)

1. Question: When and where does the employer obtain prevailing wage information when filing a PERM application?

Answer: Prior to filing the Application for Permanent Employment Certification, ETA Form 9089, the employer must request a prevailing wage determination from the State Workforce Agency (SWA) having jurisdiction over the proposed area of intended employment. The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET(OES) code, the occupation title, the OES skill level (if applicable), the wage source, the determination date, and the expiration date.

NOTE: The SWA prevailing wage determination documentation is not submitted with the application for permanent labor certification, but must be retained for a period of five years from the date of filing the application by the employer. This documentation must be submitted if requested by the Certifying Officer during an audit.

2. Question: How do employers get a prevailing wage if filing an H-1B, H-1B1, or E-3 Labor Condition Application?

Answer: The Immigration and Nationality Act provides that, unlike the other labor certification programs, the employer has the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information.

By obtaining the prevailing wage from the appropriate SWA, the employer is given "safe-harbor status," meaning that if the employer's wage compliance is investigated for any reason, Wage and Hour Division will not challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct geographic area, occupation, and skill level).

3. Question: How do employers get a prevailing wage if filing an H-2B temporary nonagricultural labor certification application?

Answer: Employers have the option of using one of three sources: (1) requesting a prevailing wage determination from the appropriate SWA; (2) using a survey conducted by an independent authoritative source; or (3) using another legitimate source of information. Otherwise, the prevailing wage for an H-2B application is provided by the SWA as part of the standard processing of the application.

4. Question: Can wage information be obtained over the telephone?

Answer: No. Prevailing wage determinations will not be provided over the phone. All prevailing wage determinations provided by the State Workforce Agencies must be in writing.

5. Question: Where can an employer get a prevailing wage request form from the State Workforce Agency (SWA)?

Answer: Employers must request and receive the determination of the prevailing wage from the SWA having jurisdiction over the geographic area of intended employment. Many SWAs provide prevailing wage request forms electronically through their own websites. If the form is not available electronically, the employer should contact the SWA representative and request the form be faxed or mailed.

6. Question: What are the primary factors to be considered in making the prevailing wage determination?

Answer: Determining the appropriate wage level depends on full consideration of the experience, education, and skills required by the employer as indicators of the complexity of the job duties, the level of judgment required and the amount of supervision involved. The step-by-step process provided in the guidance is not intended to be an automatic process. The wage level assigned to a prevailing wage request should be commensurate with the wage level definitions.

III. State Workforce Agency (SWA) Responsibilities (Table of Contents)

1. Question: How does the SWA determine the prevailing wage?

Answer: If the SWA determines the job opportunity is covered by a collective bargaining agreement (CBA) negotiated at arms length and a wage rate has been negotiated under the agreement as evidenced by information provided by the employer, than the CBA wage rate is the prevailing wage.

An employer may also choose, in the absence of a wage rate determined under a collective bargaining agreement, to provide the SWA with a survey, either public or private, which meets the requirements of Appendix F of the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs. In addition, an employer can elect to use a current wage rate in the area of intended employment under the Davis-Bacon or the McNamara-O'Hara Service Contract Act.

In the absence of a wage determined under a collective bargaining agreement, or an acceptable employer-provided survey, the SWA determines the prevailing wage rate using the wage component of the Occupational Employment Statistics (OES) survey. The OES survey is a national survey managed by the Bureau of Labor Statistics (BLS), which provides a large enough sample to allow BLS to determine a prevailing wage for most occupations in every area of intended employment in the United States. The OES wage data is made available at four levels. The SWA must make a determination of the appropriate level based on the experience, education, and requirements of the employer's job opportunity.

2. Question: Are the SWAs instructed to process prevailing wage determinations on a first in, first out (FIFO) basis?

Answer: SWAs generally process prevailing wage determinations on a FIFO basis.

3. Question: What is the average processing time for the SWA to respond to a prevailing wage request?

Answer: Although the time frames vary from state to state due to the number of requests pending at the time of submission, SWAs generally provide responses within 14 business days of the receipt of the request. If the employer provides its own survey, responses to such requests are generally done within 30 business days of the receipt of the request.

4. Question: How can an employer check the status of a prevailing wage request?

Answer: An employer can check the status of a prevailing wage request by contacting the SWA. However, an employer should take into consideration the fact that frequent calls to the SWA may result in more time responding to such requests rather than processing the request itself.

IV. Employer Responsibilities (Table of Contents)

1. Question: Must H-1B, H-1B1, E-3, and H-2B employers keep a prevailing wage determination received from a SWA for 5 years?

Answer: No, the 5 year retention requirement is for applications for permanent labor certification only. H-1B, H-1B1, and E-3 employers that elect to receive a prevailing wage determination from a SWA should keep the determination in their public access file for a minimum of one year. However, it is recommended that the determination be kept on file for as long as the temporary worker is employed. It is recommended that the prevailing wage determination for H-2B applications be kept on file for as long as the H-2B worker is employed.

2. Question: Does a prevailing wage determination expire?

Answer: Yes, a prevailing wage determination has a limited validity period as specified by the State Workforce Agency. The validity period may range from no less than 90 days to no more than one year from the determination date.

NOTE: To use a prevailing wage determination for an application for permanent labor certification, the employer must file the application or begin the recruitment required within the validity period specified by the State Workforce Agency.

3. Question: What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

Answer: The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency.

4. Question: Will the wage rate set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

Answer: No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted prior to the H-1B Visa Reform Act, is no longer acceptable.

5. Question: Does the offered wage need to be included in the advertisement?

Answer: The offered wage does not need to be included in the advertisement for applications for permanent labor certification, but if a wage rate is included, it must be at or above the prevailing wage rate. The wage offer does need to be stated in the advertisements for H-2B applications.

6. Question: Is the employer permitted to use a wage range as opposed to a single wage rate in advertisements for the job offer?

Answer: Yes, the employer may advertise with a wage range as long as the bottom of the range is no less than the prevailing wage rate.

7. Question: Under the PERM regulation must the employer obtain a prevailing wage determination before the employer begins recruitment?

Answer: No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower then the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.

8. Question: Is it required that the employer's job description and requirements on a prevailing wage request to the SWA match the description used for recruitment purposes?

Answer: To insure that the appropriate prevailing wage is determined by the SWA, it is important that the employer's job description and requirements stated on the prevailing wage request form are substantially similar to those used in the recruitment efforts and on the application for labor certification. Consistency is important to prevent any misinterpretation. It is important that each request for a prevailing wage determination include sufficient information to determine the complexity of the job duties, the level of judgment, the amount and level of supervision, and the level of understanding required to perform the job duties. SWAs reserve the right to contact an employer to obtain additional information.

9. Question: Is it permissible to use the same prevailing wage determination for more than one application?

Answer: Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.

10. Question: Must the employer request a prevailing wage from the SWA if a Collective Bargaining Agreement is in place?

Answer: Prior to filing an application for Permanent Labor Certification, employers must request a prevailing wage from the SWA having jurisdiction over the proposed area of intended employment even if a Collective Bargaining Agreement is in place. The prevailing wage request should include documentation that includes the parties to the agreement, effective date of the agreement and the occupations covered by the agreement. The SWA is responsible for evaluating whether the wage source chosen by the employer is applicable and/or acceptable.

11. Question: Must a prevailing wage determination be obtained from the SWA even if the employer is filing an application under the optional recruitment for college and university teachers and/or the Schedule A provisions?

Answer: Yes, a prevailing wage determination must be obtained from the SWA even if the employer is filing an application under the optional recruitment for college and university teachers and/or the Schedule A provisions.

V. Wage Determinations Using Occupational Employment Statistics (OES) Wage Data (Table of Contents)

1. Question: What is the difference between the four wage levels?

Answer: When the OES survey is used to determine the prevailing wage, the wage rate will be based on four wage levels corresponding with experience, education, and the level of supervision. The Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs provides the step-by-step procedure for selecting the appropriate wage level for prevailing wage purposes. However, the step-by-step procedure is not intended to be applied in an automated fashion. The wage level chosen should be consistent with the wage level definitions.

Level I (entry) wage rates are assigned to job offers for beginning level employees who have only a basic understanding of the occupation. These employees perform routine tasks that require limited, if any, exercise of judgment. The tasks provide experience and familiarization with the employer’s methods, practices, and programs. The employees may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Their work is closely monitored and reviewed for accuracy. Statements that the job offer is for a research fellow, a worker in training, or an internship are indicators that a Level I wage should be considered.

Level II (qualified) wage rates are assigned to job offers for qualified employees who have attained, either through education or experience, a good understanding of the occupation. They perform moderately complex tasks that require limited judgment. An indicator that the job request warrants a wage determination at Level II would be a requirement for years of education and/or experience that are generally required as described in the O*NET Job Zones.

Level III (experienced) wage rates are assigned to job offers for experienced employees who have a sound understanding of the occupation and have attained either through education or experience special skills or knowledge. They perform tasks that require exercising judgment and may coordinate the activities of other staff. They may have supervisory authority over those staff. A requirement for years of experience or educational degrees that are at the higher ranges indicated in the O*NET Job Zones would be indicators that a Level III wage should be considered.

Frequently key words in the job title can be used as indicators that an employer's job offer is for an experienced worker. Words such as 'lead' (lead analyst) or 'senior' (senior programmer) or 'head' (head nurse) or 'chief' (crew chief) or 'journeyman' (journeyman plumber) would be indicators that a Level III wage should be considered.

Level IV (fully competent) wage rates are assigned to job offers for competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. These employees receive only technical guidance and their work is reviewed only for application of sound judgment and effectiveness in meeting the establishment’s procedures and expectations. They generally have management and or supervisory responsibilities.

2. Question: Are certain O*NET-SOC occupations always considered to warrant a prevailing wage determination above a level I?

Answer: No. All O*NET-SOC occupations encompass all four wage levels. Determining the appropriate wage level depends on full consideration of the experience, education, and skills required by the employer as indicators of the complexity of the job duties, the level of judgment, the amount of supervision given, and the level of understanding required to perform the job. If the employer’s requirements are such that the job opportunity is for an entry-level worker, the wage level would be a level I.

3. Question: There are instances where the level one wage seems high for an entry level worker. How should a SWA and employer resolve this apparent discrepancy?

Answer: The OES survey is a statistically valid cross-industry wage source that encompasses all aspects of an occupation within the SOC classification. The Employment and Training Administration does not control any specific wage data that appears in the OES survey. SWAs are encouraged to work with employers to make a prevailing wage determination that is representative of the prevailing wage in the area of intended employment. Employers always have the option of providing an alternative wage survey.

4. Question: Is there any guidance on assigning the wage levels for medical residents?

Answer: Physician education and training for clinical or practicing physicians includes: 8 years of education (4 years for the bachelor’s degree and 4 years of medical school for the medical degree) followed by residency training in the area of specialty in which the candidate plans to practice. The residency period which may be 3 to 7 years depending on the specialty equates to on the job training and is closely supervised. Medical residents are generally considered to be entry level workers.

5. Question: Is there any guidance to assign wage levels to college faculty? Would it be appropriate to assign a Level I wage to Instructors, a Level II wage to Assistant Professors, a Level III wage to Associate Professors, and a Level IV wage to Full Professors?

Answer: Wage level determinations should not be based on the title of the employer's job offer. Job titles alone do not provide sufficient information to make a prevailing wage determination. Determining the appropriate wage level depends on full consideration of the experience, education, and skills required by the employer as indicators of the complexity of the job duties, the level of judgment, the amount of supervision given, and the level of understanding required to perform the job.

6. Question: Does the placement of the position in the employer's hierarchy determine the appropriate wage level?

Answer: The location of the job within an employer's internal organizational structure might be one factor in determining the appropriate wage level. Workers at a lower level are more likely to be working under closer supervision and performing work that is routine in nature. The experience, education, and amount of supervision described in the employer's job requirements are the primary determinants. The step-by-step process provided in the guidance is not intended to be an automatic process. The wage level assigned to a prevailing wage request should be commensurate with the wage level definitions.

VI. Step-by-Step Process for Determining the Wage Level (Table of Contents)

Step 1 - Compare the employer's requirements to O*NET

1. Question: Some prevailing wage determination (PWD) requests provide the title (and sometimes the DOT or O*NET SOC code) of the employer's job offer and little in the way of a job description. Should the SWA base the PWD on the employer's job title?

Answer: Generic job descriptions are generally unacceptable. Determining the appropriate wage level can only be made after careful consideration of the job requirements. Failure to provide a complete job description may cause a delay. The SWA reserves the right to contact the employer for additional information before making the prevailing wage determination.

2. Question: When requesting a prevailing wage determination from the SWA should the employer include, if applicable, alternative experience requirements? For example, if the employer requires a Master's Degree plus 2 years experience but will accept a Bachelor's Degree plus 5 years experience, as an alternative, should the employer include both on the prevailing wage request?

Answer: No, the employer should not separately include "alternative education and experience requirements" when requesting a prevailing wage determination from the SWA. Employer requests for prevailing wage determinations must describe the actual education and experience requirements the worker must possess to be considered for the job opportunity.

NOTE: The education and experience stated on the prevailing wage request for PERM applications must match the minimum education and experience stated on the ETA form 9089 (Item H4, H4a, H4b, H6 and H6a). The employer is reminded that alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which employment is sought.

Step 2 - Experience

3. Question: If the level of experience an employer seeks is equal to the minimum level of experience requirement in the job zone for the occupation, what should be entered in the experience column?

Answer: For occupations in Job Zones 2-5 the guidance suggests that a 1 be added on the worksheet only if the required experience is above the starting point of the O*NET Job Zone range. If the level of experience required for the job opportunity is less than or equal to the minimum level of experience indicated by the starting point of experience described in the O*NET Job Zone, no points should be added.

4. Question: How many points should be added for experience where the employer's experience requirement is stated as a range i.e. two to four years of experience?

Answer: An employer's request for a prevailing wage determination should state the employer's minimum level of experience required for the job opportunity. An experience requirement stated as a range is not acceptable and the State Workforce Agency may contact the employer to clarify the requirement.

Step 3 - Education

5. Question: Should the education levels described in the O*NET Job Zone be used for professional occupations?

Answer: No. Professional occupations published in Appendix A to the preamble of the PERM regulation generally require a bachelor's or higher degree. Occupations on the list are grouped into Education and Training Categories that designate the usual education requirement. This list of occupations with the Education and Training Category has been included in Appendix D of the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs. Use the Education and Training categories in the Appendix D to determine the usual education level for all professional occupations listed in the appendix.

6. Question: There are some professional O*NET SOC occupations (e.g. Life Scientists, R&D, Physical Scientists, R&D) not on the list of professional occupation in Appendix D of the guidance. How should the education level be determined?

Answer: If a professional occupation is not listed in Appendix D of the guidance, consider the education level described in the O*NET Job Zone and use the education level of related or similar occupations that are listed in Appendix D of the guidance to determine the usual education level. In most cases, the employment of post-doctoral research candidates requires a doctoral degree and should be considered an Education and Training category '2' (completion of the degree program usually requires at least 3 years of full-time equivalent academic work beyond the bachelor's degree).

7. Question: If an occupation on the list in appendix D of the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs has an Education and Training category of '5' (bachelor's degree generally required) and the employer's education requirement is for a master's degree, should 1 or 2 points be added on the work sheet?

Answer: A master's degree is generally considered to be one education level higher than a bachelor's degree so 1 point would be added. The years of experience required for the job opportunity should be considered separately from the education requirement to avoid double counting.

8. Question: How should the number of points be determined for education where the employer provides alternative education requirements (e.g. a 2- or 4-year degree for a nurse)?

Answer: An employer's request for a prevailing wage determination should state the employer's minimum level of education required for the job opportunity. An education requirement stated as a range is not acceptable and the SWA may contact the employer to clarify the requirement.

Step 4 - Special Skills

9. Question: The guidance in Step 4 requires a comparison of the requirements in the employer's job offer to the tasks, work activities, knowledge, and job zone examples found in O*NET to determine special skills. Should points always be added if the employer's requirements don't match what is contained in the O*NET report?

Answer: The tasks, skills, knowledge and work activities provided in O*NET serve as a guideline and points should not be applied mechanically. The exact wording need not be contained in the O*NET summary report. A point or points (raising the wage level) should be added only in situations where the job requirements are above those of an entry-level worker.

10. Question: If an employer requirement includes a license or certification, should a point automatically be added?

Answer: Occupational licenses (sometimes referred to as certifications) can be generally thought of as a 'right to practice'. The requirement to have such a credential is based on Federal or state laws and regulations. The requirement to have the credential may vary from state to state. Points should not be added if the license is required to work as an entry-level worker in the occupation in the area of intended employment. A point should be added if the license or certification indicates that the worker must have special skills or knowledge above the entry level for the occupation.

Step 5 - Supervision

11. Question: Concerning Step 5 of the Prevailing Wage Worksheet, will supervisory duties always add a point, even if the supervisory duties are customary to the position?

Answer: No, if supervision is a customary duty for the O*NET occupation (e.g. First-Line Supervisors/Managers occupations), a point is not added. The wage structure of the occupation already accounts for supervisory responsibilities.

12. Question: Should points be added for supervisory responsibilities for manager occupations? The prevailing wage guidance state that a "first-line supervisor" is expected to have supervisory duties and will not receive an extra point. Would this guidance also apply to managers?

Answer: Supervision is an inherent responsibility for management occupations. For such occupations a point would not be automatically added for supervisory duties. The wage structure of the occupation already accounts for supervisory responsibilities. When making the determination of wage level, consider the number of persons, or units, departments, teams, etc. that are to be supervised and the level of the management position in the company’s hierarchy which might indicate that the job opportunity is for a middle or upper-level manager.

VII. Online Wage Library (Table of Contents)

1. Question: How can an employer determine if the wage offered meets the prevailing wage?

Answer: The Online Wage Library is the source for prevailing wage information. The library contains wage data from the Occupational Employment Statistics (OES) survey conducted by the Bureau of Labor Statistics. The data is searchable by occupation and geographic location.

Select the "OES Search Wizard Option", you must first select the state (from the drop-down list) where the job is being offered, then press "continue". To get the wage data for geographic location and occupation:
Select the county (from the drop-down list) where the job is being offered.
Select the occupation title from a drop-down list of occupations (occupational families from the Standard Occupational Classification - SOC) OR type in the name of the occupation in the "key word or phrase" window. The computer will search for the occupation in the database of SOC occupational titles and definitions.
Select a Data Year – the most current data year is displayed so you do not need to make a selection.
Select a Data Source – the "All Industries Data" is displayed. You will need to change the selection only if the job opportunity is in a higher education or non-profit research facility as defined in the American Competitiveness and Workforce Improvement Act (ACWIA). If that is the case, click on the drop-down arrow and select ACWIA – Higher Education Database.
Click "search".
If you entered a key word for the occupation, you will then be offered one or more occupations from which to choose. You should select the occupation whose definition most closely resembles the job description of the job being offered.
The "OES Results" page will display the occupation and geographic area you selected with hourly and annual wages at four levels.

For information on interpreting the prevailing wage as either that for "Level I" (entry), "Level II" (qualified), "Level III" (experienced), or "Level IV" (competent) see Question 12 regarding wage levels. The Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs provides the step-by-step procedure for selecting the appropriate wage level for prevailing wage purposes.

NOTE: Under the PERM program, an employer must request a prevailing wage determination from the appropriate State Workforce Agency prior to submitting an application for permanent labor certification.

2. Question: Why are wage data suppressed for some occupations in selected geographic areas in the Online Wage Library?

Answer: The wage data in the Online Wage Library were previously calculated at two levels. The changes to the prevailing wage determination process for foreign labor certification due to the H-1B Visa Reform Act require that two intermediate levels be calculated between Level 1 and Level 2. The wage data are most likely suppressed because the original Level 1 and Level 2 values were either identical or too close together to permit the calculation of the required intermediate levels.

3. Question: What wage should be used to make a prevailing wage determination if the data in the Online Wage Library is suppressed for the occupation that matches an employer's job opportunity?

Answer: If the wage data in the Online Wage Library is suppressed, other sources of wage information should be used such as employer-provided surveys. In this situation (if the data in the Online Wage Library is suppressed for the occupation that matches an employer's job opportunity), the employer could elect to provide the SWA with the OES data available from the State as an employer-provided survey. The prevailing wage would be determined using the mean wage since employer-provided surveys are not required to reflect four levels.

4. Question: Should the American Competitiveness and Workforce Improvement Act (ACWIA) wages be used for occupations other than faculty and researchers in college or university settings?

Answer: Yes. The ACWIA indicates that all occupations in institutions of higher education, a related or affiliated nonprofit entity, nonprofit research organization, or governmental research agency, should be provided prevailing wages using the ACWIA database or use the prevailing wage based on a sample of similar institutions.

5. Question: If no ACWIA wage is available for a particular SOC occupation what wage should be used?

Answer: If no ACWIA wage is available for a particular SOC occupation, the default wage is the "All Industry" wage for the occupation. For instances where the "All Industry" wage is also unavailable, the default wage is the wage for a comparable occupation.

6. Question: For occupations for which there is wage data in both the "All Industries" and the ACWIA wage database, should the higher wage be used when making prevailing wage determinations?

Answer: No. In general, the ACWIA wage should be used regardless of whether it is higher or lower than the "All Industries" wage for all occupations in institutions of higher education, a related or affiliated nonprofit entity, nonprofit research organization, or governmental research agency.

VIII. Employer-Provided Wage Surveys (Table of Contents)

1. Question: When is an employer permitted to provide an alternate wage source?

Answer: Unless the job opportunity for which a prevailing wage is sought is covered by a Collective Bargaining Agreement or professional sport's league's rules or regulations, the employer may use an employer-provided survey. In such cases the employer-provided survey must conform to the specifications as described in regulation and the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs (Appendix F "Standards for Employer-provided Surveys").

2. Question: Can employers or attorneys conduct their own occupational surveys?

Answer: Yes. The survey must meet all the criteria described in regulation and the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs (Appendix F "Standards for Employer-provided Surveys"). Employers providing their own survey to the State Workforce Agency must also provide their survey methodology.

3. Question: What are the criteria for an acceptable employer-provided survey?

Answer: If an employer provides a SWA with an employer-provided survey, the SWA is responsible for evaluating whether the wage source is applicable and/or acceptable. Appendix F of the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs outlines the criteria for evaluating employer-provided surveys.

Employer provided surveys for nonagricultural jobs must meet the following standards:

• Data on which the wage is based must have been collected within 24 months of the publication date of the survey or, if the employer itself conducted the survey, within 24 months of the date the employer submits the survey to the SWA.



• A published survey must have been published within 24 months of the date of submission and it must be the most current edition of the survey with wage data that meet the criteria under this section.



• The survey data must represent similar jobs in the area of intended employment—the area within normal commuting distance of the place (address) of intended employment. The area surveyed can be expanded if the employer can show that there are an insufficient number of workers in the area of intended employment.



• The survey's job description must match the job description contained in the employer's request for acceptance to use the survey or other wage data for prevailing wage purposes.



• The wage data must have been collected across industries that employ workers in the occupation.



• The survey should produce an arithmetic mean (weighted average) of wages for workers in the appropriate occupational classification in the area of intended employment. If a mean is not available, the median can be used.



• The survey must identify a statistically valid methodology that was used to collect the data.

4. Question: If a State Workforce Agency accepts a private survey, is that survey determination then the new wage for that occupation in the given area?

Answer: No. A private survey is good one time for the employer that submits the survey. Other employers will be issued the Occupational Employment Statistics wage unless they submit a survey for review.

5. Question: Can an employer submit more than one survey at a time?

Answer: No. Only one survey will be evaluated at a time for a given employer.

6. Question: Must a private survey mirror the Occupational Employment Statistics (OES) survey?

Answer: No. It is not necessary that the private survey mirror the OES survey. It is not necessary to use the identical geographic region, cross reference, etc.

7. Question: What is the minimum sample size that will be accepted?

Answer: There is no minimum sample size. It will depend on the occupation, the area of intended employment, and the area surveyed. The key determinant is whether the sample is representative. The private survey must include a representative sample of workers in the occupation in the area of intended employment.

8. Question: Some private surveys do not differentiate types of positions within a given occupation. (Example: "engineers" can include electronic, mechanical, industrial). Must the private survey distinguish within a given occupation?

Answer: No. The private survey does not have to be limited to the specific occupational classification within a field. A survey that includes all engineers, in an effort to capture a broader sample, may be accepted provided the survey does not also provide usable wage rates for the specific occupational classification. For example, if the job opportunity for which a prevailing wage determination is sought is a nuclear engineer, a survey for "engineers" would be acceptable provided that the survey does not include usable wage data for the specific occupational classification of nuclear engineers. There is no requirement that a private survey include a cross-sample of occupational types. There simply must be an adequate match of job duties, not a precise and exact match.

9. Question: Does a survey have to utilize a random sampling procedure or is it adequate to have a representative sampling of employees obtained through other statistical methods?

Answer: A random sampling is not an absolute requirement but the survey has to reflect a representative sampling of similarly employed workers in the area surveyed.

10. Question: The survey must reflect area of intended employment. Must the employer survey use the same geographic area as the government survey?

Answer: Not necessarily. In all cases, if the employer's survey is limited to the area of intended employment, it meets the geographic requirement of the regulations. If the survey is broader than the area of intended employment, the employer must establish that there were not sufficient workers in the area of intended employment, thus necessitating the expansion of the area surveyed. The area of intended employment should not be expanded beyond that which is necessary to produce a representative sample.

11. Question: Is it permissible for a private survey to encompass an area different from or larger than a Metropolitan Statistical Area (MSA), a Primary Metropolitan Statistical Area (PMSA) or a Balance Of State (BOS) if all sources are obtained from locations within normal commuting distance?

Answer: Yes. Under the Department's regulations, normal commuting distance is always the first order of inquiry in determining the scope of the area of intended employment.

12. Question: Will a survey that includes employers from another state be acceptable if the out-of-state employers surveyed are located within normal commuting distance of the intended place of employment?

Answer: Yes.

13. Question: Will a survey utilizing a Consolidated Metropolitan Statistical Area (CMSA) be accepted if all points on the survey are within normal commuting distance of the employer?

Answer: Yes.

14. Question: Must an employer survey be limited to contiguous area if the Occupational Employment Statistics (OES) survey utilizes an expanded geographical area, such as a GeoLevel 3 (wage rates are calculated from statewide data due to insufficient data)?

Answer: No, as long as the employer presents documentation to establish that it could not obtain an adequate sample from within the expanded area.

15. Question: May a private survey use a larger geographic area than the Occupational Employment Statistics (OES) survey?

Answer: Possibly. A private survey that uses a larger geographic area might be acceptable. For example, a survey company might not be able to obtain an adequate sample within the area of intended employment and therefore would not be able to provide a wage determination for the specific occupation at a level equal to or smaller. In this case, the employer should document why it was not possible to obtain a representative sample within the area of intended employment based upon standard survey practices.

16. Question: Is a survey acceptable if the employer uses a smaller geographic area than the Occupational Employment Statistics (OES) survey?

Answer: A private survey need not mirror the OES survey. If the employer was able to obtain an adequate and representative sample within a smaller geographic region than that used for the OES survey, and that area is representative of the area of intended employment, then the private survey should be accepted.

17. Question: Is a private survey acceptable if it crosses state lines?

Answer: Yes. If the survey was done within normal commuting distance, or if crossing state lines was necessary to obtain an adequate sample.

18. Question: The survey must be across industries. Is there a minimal number of "industrial codes" that must be included in the cross-industry survey?

Answer: No. It simply needs to be a representative sampling of workers in the occupation across industries.

19. Question: May an employer use an industry-specific survey if an occupation is only present within several industries?

Answer: Generally speaking an employer provided survey must be across industries. However, if an occupation is found predominantly in one industry, an industry-specific survey would be acceptable provided that it is based on a representative sampling of workers in that occupation.

20. Question: Must the employer-provided survey reflect wages for four skill levels?

Answer: No. It is not necessary that a private survey distinguish occupational wage levels as is done under the Occupational Employment Statistics (OES) survey. The level selected by the employer from their survey must be the one that most closely matches the level of experience or responsibility in the job offer.

A private survey that provides one overall average for an occupation is acceptable provided that the survey does not also include usable wage data for varying levels of skill or responsibility within the occupation. In such cases, the arithmetic mean for the skill level that most closely matches the employer's job opportunity should be used.

21. Question: If an employer’s job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O’Hara Service Contract Act (SCA), must the employer use the DBA or SCA?

Answer: No, the employer is not required to use a wage determination under the DBA or SCA, but may elect to do so.

22. Question: Since the use of Davis-Bacon or McNamara-O’Hara Service Contract Act (SCA) is no longer controlling, but employers may request that those sources be considered as an employer-provided wage source, does this same rule apply to H-1B, H-1B1, E-3, and H-2B applications?

Answer: Yes. The same rules apply for all of the temporary nonagricultural programs.

23. Question: If an employer requests the State Workforce Agency to use Davis-Bacon or Service Contract wages, must the employer provide the wage information?

Answer: Yes. The Davis-Bacon and Service Contract Act wage surveys are now considered as employer-provided surveys; therefore the employer is responsible for providing the wage and the supporting documentation required of an employer-provided survey.

24. Question: Do the restrictions on the use of Service Contract (SCA) wages still apply?

Answer: Yes. When a SCA wage is subject to an artificial cap, currently certain computer occupations, the rate will not be issued by the State Workforce Agency and may not be used by the employer as the prevailing wage. In these instances the default prevailing wage rate is the Occupational Employment Statistics survey wage.

25. Question: When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?

Answer: If an acceptable employer-provided survey provides only a median and not an arithmetic mean, use of the median is permitted.

IX. Challenges to Prevailing Wage Determinations (Table of Contents)

1. Question: What options are available to an employer who disagrees with the SWA prevailing wage determination?

Answer: If an employer disagrees with the skill level assigned to its job opportunity, or if the SWA informs the employer its survey is not acceptable, or if there are other legitimate bases for such a review, the employer is afforded one opportunity to provide supplemental information to the SWA. SWAs and employers are encouraged to work together in resolving issues to avoid delays in filing and processing applications for labor certification.

Additionally, the employer may choose to file a new request for a wage determination or request review by the Certifying Officer.

2. Question: If an employer wants to submit additional documentation when appealing a prevailing wage determination, must they submit this first to the SWA or do they have the option of avoiding this step and going directly to the Certifying Officer with the appeal?

Answer: All appeals must go through the SWA that made the determination. Employers that disagree with their prevailing wage determination are afforded only one opportunity to provide supplemental information to the SWA. Employers that request additional review by the Certifying Officer must clearly identify to the SWA the prevailing wage determination for which the review is sought, state the grounds for the request, and include all the materials submitted up to the date that the determination was made. The appeal stage of the process is not intended to serve as an avenue for the employer to submit new materials relating to a prevailing wage determination directly to the Certifying Officer.

3. Question: How should appeals by submitted to the certifying officer? Should the envelopes in which they are submitted refer to a specific department or reference in order to avoid having them be put into the queue of mail-in PERM applications?

Answer: State Workforce Agencies are responsible for providing the documentation for an employer's request for review of a prevailing wage determination to the Certifying Officer. Documentation sent directly to the Certifying Officers from employers or their representatives will not be considered.

4. Question: Is the employer permitted to request a review by the Certifying Officer of a SWA prevailing wage determination?

Answer: Yes, the employer may request a review by the Certifying Officer of a SWA prevailing wage determination by sending a request for review to the SWA that issued the prevailing wage determination within 30 days of the date of the determination.

5. Question: For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the SWA determination?

Answer: The 30 days to file an appeal to the Certifying Officer begins on the date that the SWA makes a final decision on the case. If the employer submits supplemental information (as permitted one time), the 30 days begins after the SWA considers and makes a decision on the supplemental information.

6. Question: Is the employer permitted to request a review of the Certifying Officer's prevailing wage determination?

Answer: Yes, the employer is permitted to request a review by the Board of Alien Labor Certification of the Certifying Officer's prevailing wage determination by submitting in writing and within 30 days of the date of the decision of the Certifying Officer, a request to the Certifying Officer who made the determination.