Written by Jonathan Aftalion, Esq. — Founding Attorney, Aftalion Law Group
(UCLA BA, Wisconsin JD, Witwatersrand LLM, dual CA + NY licensure, Super Lawyers Rising Stars)
In this blog, we'll explore:
Key Point:
- The prevailing wage is what workers in the same occupation are typically paid in the area of intended employment, measured at the time the application is filed.
- On an H-1B, H-1B1, or E-3 case the employer must pay the higher of the prevailing wage or the actual wage it pays similar employees, and never less than other applicable law requires.
- Employers are encouraged, though not required, to obtain a prevailing wage determination from the National Prevailing Wage Center using Form ETA-9141.
The prevailing wage is the single number that most often decides whether an H-1B case starts on solid ground. It sets the floor for what the employer must pay, and it appears on the labor condition application the employer files before petitioning USCIS. Get it wrong and the case can stall or draw scrutiny. This guide explains what the prevailing wage is, how it interacts with the actual wage, and how employers establish it, based on Department of Labor guidance. For the filing it supports, see our guide to the labor condition application.
What Is the Prevailing Wage?
The prevailing wage is the wage predominantly paid to workers in the same occupational classification in the area of intended employment, measured at the time the application is filed. In plain terms, it is the going rate for that job, in that place, right now. It exists so that hiring a foreign professional does not depress wages for workers already doing similar work, which is one of the core protections behind the whole labor condition application system.
Prevailing Wage vs. Actual Wage: Pay the Higher
The prevailing wage is only half of the wage rule. The employer must also identify the actual wage, meaning what it already pays its other employees with similar experience and qualifications performing the same job. The required wage on the case is the higher of those two figures. On top of that, the employer can never pay below a wage required by any other federal, state, or local law. So the required salary is effectively the highest of the actual wage, the prevailing wage, and any legally mandated minimum.
How Employers Establish the Prevailing Wage
Employers are encouraged, though not required, to obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC) by filing Form ETA-9141, Application for Prevailing Wage Determination. Requesting an official determination gives the employer a defensible number to rely on, rather than an estimate. Whether or not a formal determination is obtained, the wage placed on the labor condition application must meet the prevailing-wage standard. The official process is described on the Department of Labor’s foreign labor certification pages.
Why the Prevailing Wage Matters to Your Case
A wage set too low is one of the most common and most avoidable reasons an employment case runs into trouble, because the wage attestation is what the Department of Labor and later USCIS rely on. Setting it correctly at the start protects the employer and the sponsored worker alike. If you are planning an H-1B, H-1B1, or E-3 case, our employment-based immigration team can help you determine the right wage and sequence the filing. Speak with a U.S. immigration lawyer for a case evaluation available at no cost. Call (424) 270-6767.
Frequently Asked Questions
It is based on what workers in the same occupation are typically paid in the area of employment. Employers can obtain an official determination from the National Prevailing Wage Center using Form ETA-9141, or rely on other permissible wage sources that meet the standard.
Then the employer must pay the actual wage. The rule is to pay the higher of the two, and never below any other legally required minimum.
No. Employers are encouraged but not required to obtain one from the National Prevailing Wage Center. Many do because it gives them a defensible figure for the labor condition application.
At the time the application is filed. Because rates change, using a current figure for the specific occupation and area is important.
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Author Bio: Jonathan Aftalion is the founder of Aftalion Law Group, an immigration law firm with offices in Los Angeles and New York. He represents individuals, families, and employers in marriage-based green cards, family-based immigration, employment visas, waivers, asylum, and removal defense across the United States.
This blog is for general informational purposes only and does not constitute legal advice or create an attorney-client relationship with Aftalion Law Group. Every immigration case is different, and if you need guidance about your specific situation, please schedule a consultation with a qualified immigration attorney.