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Prevailing Wage Determinations

PROGRAM DESCRIPTION:This process allows employers to obtain prevailing wage information for the PERM, H-1B or F-1 visa application purposes.

REGULATIONS: 20 CFR, Part 656.40

PREVAILING WAGE DETERMINATION POLICY GUIDANCE FOR NONAGRICULTURAL PROGRAMS
The implementation of the H-1B Reform Act and the publication of the Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation necessitate the need to issue policy clarification and procedural guidance to the State Workforce Agencies (SWAs).

The requirements governing prevailing wage determinations used in the Foreign Labor Certification (FLC) program have been recently revised by the H-1B Visa Reform Act. The major changes affecting prevailing wage determinations due to the reforms are (effective on March 8, 2005):

  1. The wage required to be paid shall be 100 percent of the prevailing wage; and
  2. 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. Where an existing governmental survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the 2 levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.

The PERM regulation published on December 27, 2004, with an effective date of March 28, 2005, has 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 those sources be considered as an employer provided wage source. (2) Employers may continue to submit published surveys from public or private sources or employer-conducted surveys as long as the survey complies with acceptable standards. Although the prevailing wage data will be provided for four skill levels, employer-provided surveys are acceptable if they contain only one weighted arithmetic mean level. If an employer-proved survey does not contain an arithmetic mean, and only provides the median, the median wage figure can be used for determining the prevailing wage. (3) Employers that disagree with their prevailing wage determination are afforded one opportunity to provide supplemental information to the SWA. Additionally, employers may choose to file a new request for a wage determination or request review by the Certifying Officer or the Board of Alien Labor Certification Appeals.

Prevailing Wage Factors
The regulatory scheme at 20 CFR 656.40, effective March 28, 2005, must be followed in determining the prevailing wage. The same policies and procedures shall be followed for the permanent labor certification program, the nonimmigrant program pertaining to H-1B professionals in specialty occupations or as fashion models, and the H-2B temporary nonagricultural labor certification program. Under § 656.40, the relevant factors in determining a prevailing wage rate are the nature of the job offer, the area of intended employment, and jobs duties for workers that are similarly employed.

OES Wage Levels
The new requirements specify that determinations made using a government survey shall be made available for each occupation at 4 levels of wages commensurate with experience, education, and the level of supervision. The SWA shall make a prevailing wage determination selecting one of the four wage levels for an occupation based on a comparison of the employer’s job requirements to the occupational requirements: tasks, knowledge, skills, and specific vocational preparation (education, training and experience) generally required for acceptable performance in that occupation.

It is important to remember that wage levels are determined only after selecting the most relevant O*NET-SOC occupational code classification. The selection of the O*NET-SOC code should not be based solely on the title of the employer’s job offer. The SWA should consider the particulars of the employer’s job offer and compare the full description to the tasks, knowledge and work activities generally associated with an O*NET-SOC occupation to insure that the most relevant occupational code has been selected.

DEFINITION OF TERMS:

Similarly Employed: Similarly Employed shall mean (1) having jobs requiring substantially similar level of skills in the area of intended employment; or (2) If there are no substantially comparable job in the area of intended employment, having substantially comparable jobs with employers outside the area of intended employment.

Area of Intended Employment: Area of Intended Employment means the area within normal commuting distance of the place (address) of intended employment. If the place of intended employment is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. Also, any place within a Primary Metropolitan Statistical Area (PMSA) is deemed to be within normal commuting distance of the place of intended employment. The same wage for the same occupation will be used for every location within the MSA or PMSA.

Request for Prevailing Wage Determinations should be faxed to:

Alien Labor Certification
Texas Workforce Commission
Prevailing Wage Unit
Fax Number: 512-463-3055

Texas Prevailing Wage Information Request Form

Please e-mail questions or comments to alienlabor@twc.state.tx.us

Return to the Alien Labor Certification Home Page

Last Revision: November 14, 2006