The request for determination of prevailing wage on Form 9141 is usually the first step in the PERM process. The PERM Rule permits, however, the commencement of recruitment before or after filing and receiving a prevailing wage determination from the Department of Labor (DOL). Each method has itswn advantages and disadvantages. In either case, there is a maximum of 180 days to begin and complete recruitment before filing the PERM application.
If the employer begins recruitment first, the PERM application must be filed before the end of the prevailing wage validity period. If the employer requests the prevailing wage first, the PERM application must be begun before the prevailing wage period ends.
A request for wage determination before recruitment provides the certainty of a pre-approved wage level and occupational code designation before recruitment commences, thus eliminating potential errors in advertising the wrong job and wages. Conversely, if recruitment begins first, the entire PERM application may be expedited without waiting many months for the issuance of a prevailing wage, but the employer cannot be sure that the wage offer and occupational code are correct.
Although there is a high level of dissatisfaction with DOL determinations, wage calculations are a daunting task for the DOL which has reduced all possible occupations into about one thousand generic SOC codes (Specific Occupational Codes). Moreover, the Bureau of Labor Statistics has to provide constantly changing to the Prevailing Wage Unit to determine wages for specific job offers based on employers' job descriptions and requirements.
Combinations of job duties, supervision, travel requirements, special skills and languages, years of experience, education and training, work force hierarchy, and level of responsibility are common factors which must be applied to determine the most appropriate wage for each job.
There are currently four wage for each job, varying from entry level to fully independent positions. The language used to describe these levels is very generalized and can lead reasonable persons to reach different, rather subjective conclusions.
Although the DOL provides wage determinations based on official statistics, employers are free to provide their own wage level surveys – whether purchased from third parties or conducted by employers themselves. Purchased surveys often fail due to their inability to be used for widely varying job offers, but if properly conducted in accordance with the regulations, employer-conducted surveys may be successfully.
Employers may decide to begin recruitment before or after obtaining prevailing wage determinations, but in either case employers should begin by analyzing the entire PERM Form instead of expediting preparation of the prevailing wage form 9141. The latter contemplates a more generalized wage determination which does not necessarily take into consideration all the conditions and requirements for specific job offers that must be set forth and filed with detail on the PERM Form 9089.
Procedures for wage determination are subject to political pressure from groups who seek to protect American wages or to diminish the number of foreign workers in the domestic workforce. in U.S. government to eliminate the use of the lowest wage (Level I) in petitions for temporary work visas, thereby raising the challenge to bring foreign labor to the US. Other changes have been recently proposed to link the two forms more closely together. New wage regulations are currently pending, and we have written about this in recent articles published on this site.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
