Federal Employment Laws That Impact Compensation and Benefits

Prevailing Wage for Foreign Nationals

Wage Requirements for Foreign Nationals

In the United States, employers hire foreign nationals, particularly in professional areas. One of the legal requirements to hire a foreign national is paying the "prevailing wage." For a nonagricultural immigration program, employers may submit a prevailing wage rate request to the National Prevailing Wage Center (NPWC). In addition, the U.S. government sponsors a salary survey, the Occupational Employment and Wage Statistics (OEWS) survey, to provide a data source for Prevailing Wage Determinations. This wage data is available from the Department of Labor's Foreign Labor Application Gateway.

The US Department of Labor's General Administrative Letter (GAL) 2-98, the Permanent Labor Certification Program regulation published on December 27, 2004, and other regulations state alternative sources may be submitted to determine prevailing wages such as:

• A wage rate set forth in a collective bargaining agreement
• A wage rate for the occupation and area of intended employment under either the Davis-Bacon Act or the McNamara-O'Hara Service Contract Act, which are available at sam.gov
• A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in Departmental regulations, or
• A wage rate produced by another legitimate source of information

Use of Private Surveys to Determine a Prevailing Wage Rate

If your company chooses to purchase a private survey to find salary data for a job, guidelines must be followed.

• Survey Data at the time of submission must be no more than 24 months old
• Wage data must be collected across industries
• Report arithmetic mean if available, otherwise the median
• Submit methodology documentation covering statistic validity and data collection
• Surveys are geographic and must provide data for the area of intended employment and
• Submitted job descriptions must match the survey descriptions

While many private surveys meet most of these requirements, the one factor that is often missing is geographic specificity. Many surveys report data on a regional basis and do not break it down further than a particular state. Each state varies as far as what data and surveys are acceptable. Just because a State Employment Service Agency accepts your private survey for a particular case does not mean it applies to any other similar case. There is no burden of proof on the Employer that Department of Labor OEWS data is correct as long as the survey using it meets requirements.