If I sponsor an employee for a green card, what wage do I have to pay?
Employers who want to sponsor foreign nationals for a green card in the U.S. will often do so through the PERM process. The PERM process requires an employer to test the U.S. labor market to determine if there are any willing, qualified and available U.S. workers for the open position with the U.S. company. A common question from employers is whether they are required to pay the employee a certain wage. As discussed below, employers are required to pay the employee at or above the prevailing wage. The specific amount will depend on the type of job and the location of the job.
What is a Prevailing Wage Determination (PWD)?
As part of the PERM process, the employer must file Form 9141 with the U.S. Department of Labor. Form 9141 is an Application for a Prevailing Wage Determination. The application will include the job duties, job requirements and location of the job. The form also asks the employer to input the occupational code that they think is appropriate for the job. The Department of Labor will then review the form and will issue a Prevailing Wage Determination, which contains the minimum wage that the employer must pay to the employee at the time the green card is granted.
How is the prevailing wage set by the Department of Labor?
The prevailing wage issued by the Department of Labor will depend on the occupational code assigned to the job and the location of the job. The prevailing wage reflects the average wage paid to workers in similar jobs & occupations in the specific geographic area of employment.
Can I figure out the prevailing wage ahead of time, before filing a PWD?
There is an Online Wage Library that allows the employer or their attorney to check the prevailing wage for a particular occupation and location ahead of time. However, the Department of Labor will decide on their own occupational code and wage level based on the job duties & requirements in the PWD. This occupational code will often match the anticipated code, but not always. If the Department of Labor issues a PWD with a different occupational code than expected, the employer may ask for a redetermination or may adjust the job duties and file a new PWD.
When do I have to start paying the prevailing wage?
Often when an employer is sponsoring a foreign national for a green card, that foreign national is already employed with the U.S. company on a temporary visa. The prevailing wage determination contains the minimum wage that the company must pay to the employee once the green card is granted. Prior to the green card being granted, the employer is not required to pay the wage listed on the Prevailing Wage Determination.
Demonstrating the ability to pay the prevailing wage
One final important issue for employers to note about the prevailing wage is that at the I-140 stage of the PERM process, they will be required to demonstrate an ability to pay the prevailing wage. U.S. Citizenship and Immigration Services (USCIS) will want to see proof that the company’s net income or net current assets are equal to or higher than the prevailing wage or evidence that the company has already been paying the employee the prevailing wage. For companies with 100 or more employees, USCIS may also accept a letter from a financial officer of the company confirming the ability to pay the wage. The employer must be able to show that it had the ability to pay the prevailing wage at the time the PERM labor certification was filed and that it continues to have the ability to pay the wage.
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