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 comparably employed. To comply with the statute, the U.S. Department of Labor’s regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.
The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Effective January 4, 2010, employers can obtain this wage rate by submitting a request to the National Prevailing Wage Center (NPWC), or by accessing other legitimate sources of information such as the Online Wage Library, available for use in some programs.
The requirement to pay prevailing wages as a minimum is true of most employment-based visa programs involving the Department of Labor. In addition, the H-1B, H-1B1, and E-3 programs require the employer to pay the prevailing wage or the actual wage paid by the employer to workers with similar skills and qualifications, whichever is higher.
The Department of Labor, Bureau of Labor Statistics (BLS) has provided wage data collected under the Occupational Employment Statistics (OES) program for use in the Foreign Labor Certification process since 1998. The wage data is available on the Foreign Labor Certification Data Center website at www.flcdatacenter.com.
The relevant prevailing wage information is determined in part by whether the worker is in one of the Nonagricultural Immigration Programs (PERM, H-2B, H-1B, H-1B1, H-1C and E-3) or the Agricultural Immigration Program (H-2A).
The NPWC uses the Prevailing Wage Determination Policy Guidance in issuing wage determinations for the Nonagricultural Immigration Programs. The Department updated the guidance in November 2009 following the publication of the H-2B regulation and the corresponding changes to PERM, H-1B, H-1B1, H-1C and E-3 regulations that affected the prevailing wage determination process.
For the H-1B, H-1B1, and E-3 programs, employers have the option of using one of three wage sources to obtain the prevailing wage: (1) a PWD obtained from the NPWC; (2) a survey conducted by an independent authoritative source; or (3) another legitimate source of wage information. By obtaining a PWD from the NPWC, H-1B, H-1B1, and E-3 employers are given “safe-harbor status,” meaning that if the employer's wage compliance is investigated for any reason, the Wage and Hour Division of the Department of Labor will not challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct geographic area, occupation, and skill level).
In South Dakota, as in all states, the U.S. Department of Labor requires employers hiring foreign workers to pay at least the prevailing wage rate for the job classification in the area of employment. This mandate is to ensure that the employment of foreign workers does not adversely affect the wages and working conditions of U.S. workers. Employers can determine the prevailing wage through the National Prevailing Wage Center (NPWC) or other approved sources, such as the Online Wage Library. For visa programs like H-1B, H-1B1, and E-3, the law stipulates that employers must pay the higher of the prevailing wage or the actual wage paid to other employees in similar positions. The Bureau of Labor Statistics provides necessary wage data through the Foreign Labor Certification Data Center. Prevailing wage determinations follow the policy updated in November 2009, and employers can choose from three wage sources to establish prevailing wages. If employers receive a Prevailing Wage Determination from the NPWC and apply it correctly, they are afforded safe-harbor status, which offers protection from wage validity challenges during investigations.
