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prevailing wage

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).

Under the Immigration and Nationality Act (INA), employers in Texas, as in other states, must ensure that hiring foreign workers does not negatively impact the wages and working conditions of U.S. workers in similar roles. To comply, employers must offer foreign workers the prevailing wage rate, which is the average wage for the occupation in the intended employment area. This rate can be determined by submitting a request to the National Prevailing Wage Center (NPWC) or using other approved sources like the Online Wage Library. Most employment-based visa programs, including H-1B, H-1B1, and E-3, require employers to pay the higher of the prevailing wage or the actual wage paid to similar employees. The Department of Labor provides wage data for these determinations through the Occupational Employment Statistics (OES) program. For H-1B, H-1B1, and E-3 visas, employers can use a Prevailing Wage Determination (PWD) from the NPWC, an independent survey, or another legitimate wage source. A PWD from the NPWC grants employers 'safe-harbor status,' protecting them from wage validity challenges in Department of Labor investigations if applied correctly.


Texas Statutes & Rules

Texas Labor Code, Title 2, Chapter 21, Subchapter D, Section 21.051
This statute is relevant as it outlines the prohibition of discrimination in wages by employers in Texas, which can include paying foreign workers less than the prevailing wage rate.

Under this section of the Texas Labor Code, an employer is prohibited from discriminating between employees on the basis of sex, race, color, disability, religion, age, or national origin by paying wages to employees at a rate less than the rate at which the employer pays wages to employees of the opposite sex or of another race, color, disability, religion, age, or national origin for equal work on jobs that require equal skill, effort, and responsibility, and which are performed under similar working conditions. This statute helps ensure that foreign workers are not paid less than their counterparts, which aligns with the federal requirement to pay at least the prevailing wage rate.

Texas Labor Code, Title 2, Chapter 62, Subchapter A, Section 62.001
This statute is relevant as it defines the general provisions for the payment of wages in Texas, which would include the requirement to pay foreign workers the prevailing wage rate.

Section 62.001 of the Texas Labor Code provides definitions and general provisions regarding the payment of wages. It defines terms such as 'wage' and 'employer' and sets the groundwork for the regulation of wage payments in Texas. While it does not specifically mention prevailing wages, it is the foundational statute for wage-related matters in the state and would be applicable to the payment of wages to foreign workers under federal guidelines.

Texas Government Code, Title 10, Subtitle D, Chapter 2258, Subchapter A, Section 2258.002
This statute is relevant as it pertains to the payment of prevailing wage rates on public works projects in Texas, which may provide context for the prevailing wage rates applicable to foreign workers.

Section 2258.002 of the Texas Government Code requires that not less than the general prevailing rate of per diem wages in the locality in which the work is performed shall be paid to workers employed on public work by or on behalf of the state or a political subdivision of the state. This statute is specific to public works and does not directly address foreign workers on employment-based visa programs, but it does demonstrate Texas's adherence to prevailing wage standards in certain contexts.

Texas Administrative Code, Title 40, Part 20, Chapter 815, Subchapter B, Rule §815.107
This rule is relevant as it outlines the Texas Workforce Commission's (TWC) role in the enforcement of wage claims, which could include claims related to the payment of prevailing wages to foreign workers.

Rule §815.107 of the Texas Administrative Code describes the Texas Workforce Commission's authority to investigate wage claims. If an employer fails to pay the prevailing wage rate as required by federal law for foreign workers, the TWC has the authority to investigate and resolve wage claims. This rule ensures that foreign workers have a state-level avenue to address wage discrepancies, including those related to prevailing wage determinations.

Federal Statutes & Rules

Immigration and Nationality Act (INA), 8 U.S.C. § 1182(n)(1)(A) and (B)
This section of the INA is relevant because it establishes the requirement for employers to pay a prevailing wage to H-1B visa holders.

The INA mandates that employers hiring foreign workers on H-1B visas must pay these employees the prevailing wage or the actual wage paid to other employees with similar experience and qualifications, whichever is higher. This ensures that the employment of H-1B workers does not adversely affect the wages and working conditions of U.S. workers in similar positions. The Department of Labor is responsible for ensuring compliance with this requirement.

20 CFR Part 655 - Labor Certification Process for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B and Other Workers)
This regulation is relevant as it outlines the labor certification process, which includes the prevailing wage determination for H-2B and other non-agricultural workers.

Part 655 of Title 20 of the Code of Federal Regulations details the procedures for employers seeking to hire foreign workers temporarily for non-agricultural employment. This includes the requirement to pay at least the prevailing wage to ensure that the wages of similarly employed U.S. workers are not adversely affected. The National Prevailing Wage Center (NPWC) provides prevailing wage determinations to employers as part of the labor certification process.

20 CFR Part 656 - Labor Certification Process for Permanent Employment of Aliens in the United States (PERM)
This regulation is relevant as it governs the PERM labor certification process, which includes the prevailing wage determination for permanent employment.

Part 656 of Title 20 of the Code of Federal Regulations establishes the requirements and procedures for the PERM labor certification process. Employers seeking to hire foreign workers on a permanent basis must obtain a labor certification, which includes obtaining a prevailing wage determination from the NPWC. This ensures that the employment of foreign workers does not negatively impact the wages and working conditions of U.S. workers in comparable positions.

Prevailing Wage Determination Policy Guidance
This guidance is relevant as it provides the methodology and procedures for determining the prevailing wage for various visa programs.

The Prevailing Wage Determination Policy Guidance issued by the Department of Labor outlines the methods for determining the prevailing wage for employment-based visa programs. The guidance includes the use of wage data from the Bureau of Labor Statistics' Occupational Employment Statistics program and other legitimate sources. It also details the 'safe-harbor status' provided to employers who obtain a prevailing wage determination from the NPWC for H-1B, H-1B1, and E-3 visa programs.

8 U.S.C. § 1101(a)(15)(H)(i)(b) and (H)(ii)(b)
These sections of the INA define the H-1B and H-2B visa categories, respectively, which are relevant to the discussion of prevailing wage requirements.

Section 1101 of the Immigration and Nationality Act defines various nonimmigrant visa categories, including H-1B for specialty occupations and H-2B for temporary non-agricultural workers. These visa categories are subject to prevailing wage requirements to protect U.S. workers' wages and working conditions. Employers must comply with the prevailing wage determinations as part of the visa application process.