PERM Prevailing Wage Determinations

A PERM labor certification is the Department of Labor’s finding, required before most employment-based green card petitions, that no able, willing and qualified U.S. worker is available for a permanent job and that hiring the foreign worker will not depress the wages of U.S. workers in similar jobs. The second half of that finding rests on a number: the prevailing wage for the job’s occupation where the job is located. This page covers how that number is issued for PERM cases under 20 CFR 656.40. The level structure behind the figure, which PERM shares with the H-1B family, is on the H-1B prevailing wage levels page.

The determination comes from the NPWC

Unlike an H-1B employer, which may look up a wage itself, a PERM employer must hold a prevailing wage determination (PWD) issued by the Office of Foreign Labor Certification’s National Prevailing Wage Center (NPWC) before it files the certification application. The request goes in on Form ETA-9141, filed through the FLAG system, and describes the job and the requirements the employer sets for it. The NPWC assigns a skill level from those requirements and returns a determination stating the wage, its source and a validity period.

The regulation states the order of sources. If the job is covered by a collective bargaining agreement negotiated at arm’s length, the agreement’s rate is the prevailing wage. Otherwise it is the arithmetic mean wage of similarly employed workers in the area, which the NPWC computes from the OEWS wage data the Bureau of Labor Statistics publishes, unless the employer supplies a survey that meets the standards in 656.40(g). An acceptable employer survey that reports only a median is applied at its median. The employer may also use a current Davis-Bacon or Service Contract Act determination for the area (656.40(b)(4)).

“Similarly employed” is defined in 656.40(d) as having substantially comparable jobs in the occupational category in the area; when a representative sample cannot be found there, the NPWC may widen to jobs requiring a substantially similar level of skill in the area, or to comparable jobs with employers outside it.

Two special cases written into the rule

For an employee of an institution of higher education, an affiliated nonprofit, a nonprofit research organization or a government research organization, the prevailing wage takes into account only wages at such institutions in the area (656.40(e)). For a professional athlete whose job is governed by a sports league’s rules, the wage those rules set is the prevailing wage (656.40(f)).

Validity, use and appeal

The NPWC sets a validity period of no less than 90 days and no more than one year from the determination date. To rely on the figure, the employer must either file the PERM application or begin its required recruitment within that window (656.40(c)); a determination that lapses before either step must be requested again, and the new one may carry a different wage if the OFLC wage data have moved to a new wage year, which on the download page runs from July to June.

An employer that disagrees with the determination may ask the NPWC director for a review under 656.41 and, after that, the Board of Alien Labor Certification Appeals; the request must identify the determination and the grounds, and the record on appeal is limited to what was before the NPWC. Submitting a new employer survey after a determination is treated as a fresh request, not an appeal.

What the figure means and does not mean

The determination fixes the minimum the employer must offer in its recruitment and pay once the worker is admitted; it is not a measure of what the sponsored worker or anyone else earns. The same OEWS survey that the NPWC reads is the source of the occupation pages and state profiles on this site, so a reader can see the full percentile distribution for an occupation in a state. The NPWC’s figure is not one of those percentiles: it is a mean, or a level built from the distribution, for a specific area and a job with specific requirements, and it is valid only for the period stamped on the form. Nothing on this site should be read as a prevailing wage determination, and the Department of Labor’s disclosure data on individual certifications is not reproduced here.

Related rules

The wage offered on the PERM application must equal or exceed the determination, and the regulation adds that no wage the employer provides may be lower than the highest wage required by any applicable federal, state or local law (656.40(i)). For temporary nonagricultural workers the parallel procedure is H-2B prevailing wage, which uses the same form and the same mean but with its own survey standards.