Employers are required to obtain a prevailing wage determination for certain non-immigrant employment based visa petitions (i.e. H-1B, H-2B, and E-3) and labor certification petitions from the State Workforce Agency (SWA) with jurisdiction over the geographical area of intended employment or other appropriate sources such as Online Wage Library. Employers are given “safe-harbor status” if they obtain the prevailing wage determination from the appropriate SWA. In other words, if the employer’s wage compliance is being investigated, the Wage and Hour Division will not challenge the validity of the prevailing wage determination so long as it was being applied properly (i.e. correct geographic area, occupation, and skill level). The primary factors taken into consideration by the SWA when making the prevailing wage determination are: experience, education, and skills required by the employer. Experience is broken down into four levels (Level I -Entry; Level II - Qualified; Level III - Experienced; Level IV - Fully Competent). The employer may use the prevailing wage determination for more than one employee if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.
Each SWA determines the validity period of the prevailing wage determination. The validity period may range from no less than ninety days to no more than one year from the date the determination was made. If the employer requested the prevailing wage determination in connection with a labor certification petition, it must retain the prevailing wage determination for five years. If the prevailing wage determination was issued in connection with a non-immigrant employment based visa petition, the employer must keep it in a public access file for a minimum of one year. Nevertheless, it is recommended that the employer keep it for the duration of the alien’s employment. The salary offered by the employer must meet or exceed the prevailing wage determination. This is designed to ensure that the wages paid to the alien does not have a depressive effect on the U.S. labor market and to ensure that the employer does not seek to employ the alien in order pay a lower salary for the position.