Overview of Wage Level Determinations

Certain employment-based immigration processes, such as the PERM labor certification and H1B nonimmigrant visa classification, require an employer to obtain a prevailing wage determination from the U.S. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC). In all applicable immigration processes, the prevailing wage amount can have significant ramifications for an employer and the particular immigration process. Therefore, it is important to understand how the DOL generally arrives at a wage determination and, specifically, how a certain wage level is assigned to an employer’s actual position.

Overview of the DOL Occupational Data Collection System

The DOL collects occupational data under the DOL Bureau of Labor Statistics (BLS), Occupational Employment Statistics (OES) Program. The DOL uses the O*NET classification system to determine the industry-norm for education, training, and experience, or special vocational preparation (SVP) classification, for particular occupations, as discussed in the MurthyDotCom InfoArticle, Determining Normal Position Requirements for PERM (13.May.2024). The OES data includes aggregate wage data for workers in each occupation in any given area of employment, which the DOL uses as a basis for its prevailing wage determinations.

Wage Level Determinations

Each occupation has four wage levels ranging from wage level 1 (entry level) to wage level 4 (fully competent). After determining the occupational classification of a position, either the DOL or the employer must determine the wage level of the position based on several factors. In the H1B context, the sponsoring employer makes this determination based on guidelines established by the DOL. In the H1B context, the employer is responsible for determining the wage level, based on DOL policy guidance. In the PERM context, the DOL makes the wage level determination directly.

Whether the wage level determination is made by the employer or the DOL, the basic guidelines are largely the same, with focus on the minimum job requirements of the offered position compared to the normal requirements for the applicable occupation. The wage level for a sponsored position increase in relation to the required competency level required for a position, as compared to the occupation’s normal requirements. Specifically, the DOL guidance looks to a sponsored position’s required minimum years of work experience and level of education, and if the position requires any special skills or training or includes supervisory duties. In the PERM context, a position’s travel requirements can also impact the wage level determination. Importantly, it is the position’s requirements that determine the wage level, not the beneficiary’s qualifications.

Importance of Wage Levels in Case Strategy

It is important for an employer to consider the prevailing wage as part of the case strategy in both the nonimmigrant and immigrant employment-based processes. For a nonimmigrant visa, such as H1B or E-3, the ramifications are immediate, as the prevailing wage amount must be paid to the sponsored employee at the time of hire. For the PERM labor certification, an employer will be required to pay the sponsored employee the prevailing wage upon the employee’s obtaining lawful permanent resident status (commonly, a green card). Additionally, the employer must be able to show the company’s ability to pay the prevailing wage from when the PERM labor certification is filed until the employee obtains a green card, as explained in the MurthyDotCom InfoArticle, Requirement to Prove Ability to Pay in an I-140 Petition (31.Aug.2020).

Conclusion

Preparing a strong employment-based immigration case from the start of the process and through the filing is a key to success in this highly regimented area of immigration law, particularly as it relates to an employer’s wage obligations. The Murthy Law Firm has extensive experience in all aspects of the employment-based immigration process, and our skillful team is available to provide assistance and representation with these matters.

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