1. To Determine the
Prevailing Wage
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.
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. One of the
major ways of ensuring this is by the regulatory requirement that the wages
offered on labor certification applications 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 virtually all employment based visa programs -
permanent and temporary. However, in certain programs, such as H-1B (temporary
specialty occupations), the employer is required to pay the prevailing wage or
the actual wage paid by the firm to workers with similar skills and
qualifications, whichever is higher.
Prior to submitting an H-1B petition, the employer will need to obtain a
prevailing wage. In all other instances, the state will evaluate upon receipt of
the application whether the employer's offered wage meets the prevailing wage.
2. How Does the SWA (State Workforce Agency) Determine the
Prevailing Wage
To
accomplish this, the SWA first determines if the job opportunity is covered by
the active union agreement. If so,
that is the prevailing wage.
If
that is not the case, the SWA fist determines if the job falls under current
wage determinations made for the Service Contract Act (SCA) and the Davis Bacon
Act (DBA). If the job opportunity
is covered by the current determination, that is the prevailing wage.
If
the job opportunity does not fit under any of the above, the SWA then turns to
the Occupational Employment Statistics survey (OES). The OES 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 every occupation in every area of intended employment in
the United States.
An
employer may also choose to provide a published survey, which includes a mean
wage for the occupation to be filled in the area of intended employment of the
job opportunity. The SWA then must
review the employer provided survey to determine if the survey meets published
standards. If so, the employer may
use that wage as the prevailing wage in that instance.
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