For employers looking to hire foreign workers under the EB-2
or EB-3 visa categories, determining the prevailing wage for a job position is
a crucial step in the labor certification process. The Prevailing Wage
Determination (PWD) process ensures that the wage offered to foreign workers
aligns with the wages paid to domestic workers in similar positions in the
United States, protecting both international and domestic markets.
According to the Department of Labor, “Prevailing wage is
the average wage paid to similarly employed workers in a specific occupation in
the area of intended employment.” It is possible to get a estimated prevailing
wage by state depending on the Standard Occupational Classification (SOC) and
the related requirements on O*net and U.S. Bureau of Labor Statistics. U.S. Department of Labor also has
a Minimum Wage Table which contains the lowest amount of
wage in a state.
Navigating the complexities of PWD can be challenging and
may impact the outcome of the application. One key element is the precise
formulation of the job description, which significantly influences the wage
level determination. Employers must carefully consider aspects such as job
title, requirements, and Standard Occupational Classification (SOC) code.
This blog explores common issues associated with prevailing
wage determination and highlights critical elements to focus on. By
understanding and avoiding these common pitfalls, employers can streamline
their application process and ensure compliance with U.S. labor laws.
(1) Job Description: The job description is one of the crucial steps
during PWD application, and it has to be very carefully formulated because the
wage highly depends on it. There are basically three components to the job
description:
●
Job Title: Regarding preparing the
job description, the initial step is establishing the job title. Generally, the
title can vary as there are no strict standards or regulations with regard to
its selection. It is often observed that jobs within the same category may
possess different titles. Job titles being different does not necessarily mean
that the quality of the job is different. However, it is recommended and safe
to consider using a similar job title to the one provided as a samples on O*net
Online. It is advisable to align or match the job title with those on O*net.
For instance, while “Mechanical
Engineer” is a commonly used job title, we aim to explore alternatives
such as “Project Engineer” or “Test Engineer.” Now, it is
mandatory to keep in mind that the job titles better reflect the roles within
the Mechanical Engineer category. Recognizing that these titles are closely
related to the Mechanical Engineer role is crucial. Failing to do so could
result in changes to the SOC Codes associated with the job, consequently
affecting the prevailing wage.
When selecting a job title, it’s
essential to ensure appropriateness with the job responsibilities. For
instance, if the job primarily is of a “Loan Processor,” that is, it involves
loan processing, labeling it as “Data Analyst” would be misleading
and incorrect. As a result, such misalignment could lead to changes in SOC
Codes and wages, akin to those of a Data Analyst.
Again, for instance, if the position
is for a “Senior Paralegal, Immigration,” it’s important to ensure
that the job title reflects this accurately. Using “Paralegal,
Immigration” would be incorrect as it is a junior post and should be
rectified accordingly. Otherwise, the prevailing wage will be determined for
the post junior in rank.
●
Job Duties: Job duties are crucial
and require careful attention during formulation to ensure consistency with the
chosen job title. Before preparing job duties, studying the responsibilities
outlined in O*NET for that specific job title is essential. Initially,
discussing these duties with the employer is necessary. Job duties provided by
the employer must be revised before submission. Failure to do so may result in
DOL requesting RFI because the responsibilities were too vague and unclear. The
pitfalls regarding the job might include – formulating job duties that are too
specific and long. The cost of advertising increases if the job duties are
excessively lengthy. To streamline the process, job duties should be condensed
to five bullet points capturing the essence of what the candidate will
undertake in the proposed role.
●
Job requirements: The requirements of
degree and skills should connect the requirements with the employee’s CV.
Again, it should not be too specific. The minimum education, skills, or
experience requirements must not include any “preferable” qualification. Also,
there should not be any subjective soft skills, such as good communication
skills. All the requirements must be quantifiable hard skills. The job
requirement should not be such that only the foreign employee meets the
requirement. For example – Need a Cashier with a bachelor’s in civil
engineering. Specific Vocational Preparation (SVP) reflects the training time
needed for adequate job performance. Job requirements should align with the
established SVP level.
(2) Classification of the job: We should consider the PERM category we are
working with and formulate job duties and requirements accordingly. For
example, if we are formulating job duties for “other/ unskilled workers,” we
cannot use the words – manage, supervise, monitor, etc.
(3) Incorrect FEIN/NAICS Code: Accurate information, such as the correct FEIN, NAICS Code, or SOC Code, must be provided.
(4) Choosing the Employer Point of Contact (POC): The designated Point of
Contact (POC) should possess in-depth knowledge of the company’s structure,
policies, finances, and EB-3 visa requirements. Authorized to access and
provide relevant information and documentation, the POC is critical to the
application’s success.
(5) Selecting Proper SOC: As the job title often looks similar, there can
be confusion when choosing the SOC Code. Care should be given immensely while
choosing the SOC code. Because the wrong SOC Code can result in different
prevailing wages.
Successfully conducting the Prevailing Wage
Determination (PWD) process is essential for employers seeking to hire foreign
workers. Formulating the elements accurately within it is very crucial to align
with DOL standards. As detailed in this discussion, even minor discrepancies
potentially lead to delays, additional requests for information (RFI), or even
denial of the application. By carefully avoiding these common pitfalls and
adhering to best practices, a successful Prevailing Wage Determination
Application can be established.
