PERM
By Liu Yu
4. Wage Determinations
The DOL requires employers sponsoring immigrant employees to pay a salary that is equal to or greater than the prevailing wage for such position. A prevailing wage is based on factors such as job position, geographic area of employment, and the requirements for the position. Prevailing Wage Determinations (PWDs) are made by the National Prevailing Wage Center (NPWC). Prevailing Wage Determinations are valid for a period of time set by the NPWC, which may be anywhere from 90 days to a year. Employers intending to rely on a PWD must file their foreign labor certification application before the PWD expires.
The NPWC bases its prevailing wage determinations on labor market statistics. Its primary source of data is the Occupational Employment Statistics (OES), which collects data on jobs in all industries in all regions of the United States. The OES is organized under the Bureau of Labor Statistics (BLS), which is part of the DOL. This data is published and frequently updated in an Online Wage Library by the Foreign Labor Certification Data Center. The library is publicly available at http://www.flcdatacenter.com.
The DOL maintains a system called the Occupational Information Network (O*NET), which provides information on skills, abilities, knowledge, tasks, work activities, and the specific vocational preparation levels pertaining to the foreign labor certification process. O*NET is available to the public at http://online.onetcenter.org. The BLS also classifies occupational wage information by a system known as the Standard Occupational Classification (SOC), which is available at https://www.bls.gov/soc/. All of these resources are all used to determine the prevailing wage of a job position.
The primary factors considered in a PWD are assessed as follows:
◆ Nature of the Job Offer – the nature of a job is initially assessed by reviewing the employer’s job description and offer and finding the relevant occupational classification in the SOC. The O*NET database may assist in providing information pertaining to similar positions to determine the skills, experience, and education typically required.
◆ Area of Intended Employment – this refers to the geographic area within normal commuting distance of the place of intended employment. The Online Wage Library makes available wage data for counties and metropolitan statistical areas (MSAs).
◆ Similarly Employed – the term “similarly employed” refers to substantially comparable jobs in the occupational category as the intended employment. If no such workers are employed by other employers in the area of intended employment, then “similarly employed” refers to jobs requiring a substantially similar level of skill within the area of intended employment, or substantially comparable jobs in the occupational category as employers outside of the area of intended employment if there are no substantially comparable jobs in the area of intended employment.
The NPWC implements a four-level scale of wages for each occupation, commensurate with experience, education, and level of supervision. The four wage levels are:
◆ Level 1 – An entry-level position that involves routine tasks, limited exercise of judgment, and close supervision by a superior.
◆ Level 2 – A qualified-level position that involves moderately complex tasks and a limited exercise of judgment.
◆ Level 3 – An experienced-level position that involves the exercise of judgment and coordination of other staff.
◆ Level 4 – An advanced-level position that requires advanced skills and diversified knowledge, and involves supervision or management over other staff.
An employer may also request the NPWC to make a wage determination on the basis of a published survey provided by, funded by, or conducted by the employer. Such survey must meet the following criteria:
◆ The survey must be recent. It must have been published within 24 months of the date of submission of the PWD request; it must be the most current edition of the survey; and it must be based on the data collected within 24 months of the date of the publication of the survey.
◆ The wage data submitted by the employer must reflect the geographic area of intended employment. If the place of intended employment is within a Metropolitan Statistical Area (MSA) or Primary Metropolitan Statistical Area (PMSA), any place within the MSA or PMSA is deemed to be within the normal commuting distance of the place of intended employment. All locations within a Consolidated Metropolitan Statistical Area (CMSA) will not automatically be deemed to be within normal commuting distances for prevailing wage purposes. An employer location just outside of the borders of a PMSA, MSA, or CMSA boundary may still be considered within normal commuting distance.
◆ The job description applicable to wage data submitted by the employer must be adequate to determine that the data represents workers who are similarly employed in jobs requiring substantially similar levels of skills.
◆ The wage data must have been collected across industries that employ workers in the occupation.
◆ The PDW should be based on the arithmetic mean (weighted average) of wages for workers that are similarly employed in the area of intended employment. If the survey provides a median wage of workers similarly employed in the area of intended employment and does not provide an arithmetic mean, the median wage shall be used as the basis for making a prevailing wage determination.
◆ In all cases where an employer provides the NPWHC with wage data for which it seeks acceptance, the employer must include the methodology used for the survey to show that it is reasonable and consistent with recognized statistical standards and principles in producing a prevailing wage, including its adherence to these standards for the acceptability of employer-provided wage data.
Finally, in cases where the offered job is covered by a collective bargaining agreement, the wage set per such agreement shall control, provided that the employer can provide evidence that such agreement was negotiated at arm’s length.
5. The PERM Recruitment Process
The first step in PERM the recruitment process is to decide whether the occupation is professional or nonprofessional one. Generally, professional occupations require at least a bachelor’s degree. However, the DOL regulations provide a list of jobs that are deemed to be professional occupations regardless of the required level of education, and recruitment for such jobs must follow the recruitment strategy set forth for professional occupations.
The second step should be to prepare advertisements that the employer will use to advertise the offered position to the general public. An advertisement must at a minimum include the employer’s name and contact information, the address of the intended place of employment, a description of the job in sufficient detail, and instructions for submitting a resume. The offered salary is not required to be listed, but if it is, it must be above the PWD.
The third step is to publish the advertisement. The employer must run the advertisement with the State Workforce Agency (SWA) for a period of at least 30 consecutive days, as well as in two Sunday editions of a major print newspaper that serves the area of intended employment. If no Sunday newspaper available is available in area, the employer may use another newspaper with the widest circulation in the applicable area. Additionally, in recruitment for professional positions, employers must also run the ad in three other forms of media from a list of 10 options provided by the DOL, which includes:
● Advertisement on the employer’s website
● Advertisement with a local college job placement office
● Advertisement with a relevant trade or professional organization
● Advertisement in a local or ethnic newspaper
● Advertisement through a private employment recruitment firm
● Advertisement on an online job search website
● Advertisement on radio or television
● Advertisement in the employer company’s employee referral program
● Participation in a local job fair
● On-campus recruitment at a local college
The employer must also post a Notice of Filing at the place of the intended employment. The Notice of Filing is an internal company notification that an application for foreign labor certification is being filed in connection with the job opportunity. The notice must include the same basic job description as in the recruitment advertisement, and must also include the wage. It must be posted in a conspicuous place for 10 consecutive business days.
Finally, at the end of the recruitment process, the employer must prepare a recruitment report, which summarizes all activities that were undertaken by the employer, all the applications and resumes that were received, all the candidates that were interviewed, and the overall results.
（To be continued）
刘宇与贝特曼律师事务所
www.eemin.com
兆龙出国顾问集团
www.zhaolong.net
