The NPWC uses the Prevailing Wage Determination Policy Guidance in issuing wage determinations for the Nonagricultural Immigration Programs. The Department updated the guidance in November 2009 following the publication of the H-2B regulation and the corresponding changes to PERM, H-1B, H-1B1, H-1C and E-3 regulations that affected the prevailing wage determination process.
1. Is submitting consolidated returns and audited financial statements for a parent company and its wholly owned subsidiaries sufficient to meet the burden of proof for establishing the company’s ability to pay by a preponderance of the evidence?
2. Where an employee who is the beneficiary of an approved I-140 and is eligible for AC-21 portability ports to a new employer in the same or similar occupation, must the new employer demonstrate the ability to pay the proffered wage from the date of portability?
3. When adjudicating I-485 applications for portability-eligible individuals where the petitioning employer is no longer in business, does USCIS require the subsequent employer to satisfy both the ability-to-pay requirement and the bona fide offer of employment requirement from the date of the employee’s subsequent hire through the approval of adjustment of status?
4. Why are prorated net assets not sufficient evidence to support ability to pay?
5. Why is the Yates Memo not applied if a beneficiary’s W-2 indicates that the actual wage paid to him/her is at least as much as the beneficiary’s proffered wage for the prorated period?
1. USCIS says that it evaluates each consolidated financial statement on a caseby-case basis under the preponderance of evidence standard to determine whether the petitioner has the ability to pay the proffered wage.
2. USCIS says that, in this situation, the new employer is not obligated to demonstrate the ability to pay from the date of portability.
How shall ability to pay wages be determined when the Priority Date is in the middle of the year?
USCIS does not calculate ability to pay wages on a pro-rated basis. USCIS will accept proof to show that petitioners have paid the required wage, as shown on ETA Form 9089, for the relevant periods of employment. Additionally, the USICS will accept other forms of evidence, such as pay stubs, W-2’s, and 1099 forms.
ETA 9141 FORM QUESTIONS
Are there any items on the ETA 9141 that requestors are routinely leaving incomplete and may cause a delay in processing or result in the request being voided?
What kind of evidence is acceptable to show ability to pay wages in an I-140?
The regulations state that for ability to pay wages, USCIS will accept copies of annual reports, federal tax returns, or audited financial statements. If the employer has more than 100 workers, a statement from a financial officer of the organization can be submitted to establish the ability to pay the proffered wage.
Wages for the July 2012 - June 2013 program year are now available and are effective July 1, 2012.
The Foreign Labor Certification Data Center is the location of the Online Wage Library for prevailing wage determinations.
Online Wage Library
The employer may request an hourly wage by entering "Request Hourly Wage" in the Job Duties block (D.a.6) of the ETA Form 9141.
Please note: Due to the nature of some occupations where the norm for the occupation is not the standard 2080 hour work year, the Occupational Employment Statistics (OES) survey does not provide an hourly wage. In such instances, the NPWC will not be able to issue the requested hourly wage, as will be indicated in a note on the prevailing wage determination.
Revised June 21, 2012
AFFILIATED OR RELATED ENTITY
R&D positions directly conduct or support a research effort. Non-R&D positions support administrative functions such as finance and technical facilities support. Employers should provide clear job duties that explain if the position supports R&D or non-R&D.
When the position combines elements from both R&D and non-R&D occupations, the NPWC will select the occupation with the highest wage in the same manner as other combinations of occupations. The PWD will only show the occupation with the highest wage.
There are nine standard occupations with wage data reported into the categories of R&D and non-R&D:
|
Soc Title |
ACWIA Code |
ACWIA Title Non R&D |
ACWIA Code |
ACWIA Title R&D |
|
17-2141 |
Mechanical Engineers |
17-2143 |
Mechanical Engineers, Non R&D |
17-2144 |
Mechanical Engineers, R&D |
|
17-2072 |
Electronics Engineers, Except Computer |
17-2075 |
Electronics Engineers, Except Computer, Non R&D |
17-2076 |
Electronics Engineers, Except Computer, R&D |
|
17-2071 |
Electrical Engineers |
17-2073 |
Electrical Engineers, Non R&D |
17-2074 |
Electrical Engineers, R&D |
|
17-2061 |
Computer Hardware Engineers |
17-2062 |
Computer Hardware Engineers, Non R&D |
17-2063 |
Computer Hardware Engineers, R&D |
|
17-2051 |
Civil Engineers |
17-2052 |
Civil Engineers, Non R&D |
17-2053 |
Civil Engineers, R&D |
|
15-1121 |
Computer Systems Analysts |
15-1052 |
Computer Systems Analysts, Non R&D |
15-1053 |
Computer Systems Analysts, R&D |
|
15-1133 |
Software Developers, Systems Software |
15-1036 |
Software Developers, Systems Software, Non R&D |
15-1037 |
Software Developers, Systems Software, R&D |
|
15-1132 |
Software Developers, Applications |
15-1034 |
Software Developers, Applications, Non R&D |
15-1035 |
Software Developers, Applications, R&D |
|
15-1131 |
Computer Programmers |
15-1022 |
Computer Programmers, Non R&D |
15-1023 |
Computer Programmers, R&D |
June 21, 2012
In the 2000 iteration of the Standard Occupational Classification (SOC) codes used by the Bureau of Labor Statistics in the Occupational Employment Statistics wage surveys, the job opportunity of "Ski Instructors and Snowboard Instructors" was categorized under SOC classification 39-9031, Fitness Trainers and Aerobics Instructors. However, the SOC reclassification that was finalized in 2010 updated this occupation. The new SOC for this position is 25-3021, Self-Enrichment Education Teachers, which now encompasses most sports instructors.
June 21, 2012
In the 2000 iteration of the Standard Occupational Classification (SOC) codes used by the Bureau of Labor Statistics in the Occupational Employment Statistics wage surveys, the job opportunity of "Oyster Shuckers" was categorized under SOC classification 51-9198 - Helpers - Production workers. However, the SOC reclassification that was finalized in 2010 clarifies the occupation to be used by listing Oyster Shucker as a sample title under the revised SOC of 51-3022, Meat, Poultry, and Fish Cutters and Trimmers. The O*Net crosswalk has not been updated to incorporate changes from the 2010 SOC and continues to provide the old code.
June 21, 2012
The NPWC researches entities that may be covered by the wage provisions of ACWIA. When a definitive decision cannot be reached, the NPWC will send a Request for Information (RFI) for documentation demonstrating how the employer meets the definition of an affiliated or related nonprofit entity.
The first element is the non-profit status of the employer. A letter issued from the Internal Revenue Service stating the employer, under the FEIN on the application, has an appropriate non-profit status, will typically be sufficient for this purpose.
The second element is affiliation with the institution of higher education, which may be demonstrated through any of the following:
1) Shared ownership of the nonprofit entity and the institution of higher education either directly or by a parent entity. This includes branch, subsidiary and cooperative relationships.
2) An oversight group (board, committee, et al) with the authority to direct the members of both the nonprofit entity and the institution of higher education.
3) An agreement requiring a position to have decision making authority in both entities. For example, the position of Chief of Radiology at the Hospital will also be the Chair of the Radiology Department at the Medical School.
4) Shared responsibility for conducting the qualifying activity. For example, the Medical School and the Hospital jointly establish the curricula for medical resident and fellowship programs. This includes situations involving several entities, such as a residency program where specific portions take place at separate hospitals and/or medical schools. In such a situation, all of the non-profit entities involved in the residency program would be considered affiliated or related nonprofit entities and covered by the ACWIA wage provisions.
Examples where an institution does not meet ACWIA wage coverage include:
1) Agreements where the institution of higher education is in essence 'renting space' from the requesting entity. Example statement: The Hospital will allow access to its facilities at the reimbursement rate negotiated each year and will remit appropriate charges for medical services provided to the Medical School.
2) Conferring of unpaid faculty status upon a person in the employ of the requesting nonprofit entity by an institution of higher education.
Additionally, the number of cross-designated employees in relation to the total number of employees in the particular program is a relevant factor in establishing affiliation. When a requesting employer has a notable number of employees cross-designated with an institution of higher education, especially when combined with a notable number of participants, then ACWIA wage coverage is indicated. For example, a large hospital employs 80 physicians and 200 nurses. 40 of those physicians and 100 of those nurses participate in the clinical training of 120 medical residents and 200 nursing students from a particular institution of higher education; the ratio is notable and ACWIA wage coverage is appropriate. Conversely, when the numbers of cross-designated employees are low, then coverage may not be indicated. For example, a mid-sized hospital has a single surgeon with part time faculty status at a particular medical school and a single fellow in training. The number of cross-designated employees and the number of participants are so small that ACWIA wage coverage is not appropriate.
June 21, 2012
PERM PREVAILING WAGES
Must I list alternative job requirements on the ETA Form 9141? Is there a section on the ETA Form 9141 where I can list the alternative requirements?
If an employer intends to accept alternative job requirements and to list such requirements on the ETA Form 9089, the employer must list its alternative job requirements on the ETA Form 9141. Specifically, the employer should list its alternative job requirements in either the Special Requirements block (D.b.5) or the Job Duties block (D.a.6) of the ETA Form 9141. This is to reflect a line of BALCA decisions affirming our ability to require the same information on the job opportunity on both forms.
It should be noted, as will be indicated in a note on the prevailing wage determination, that the NPWC will not consider the alternative job requirements when making the wage determination; prevailing wage determinations will be based ONLY on the job requirements listed by the employer in the Minimum Requirements block (D.b) of the ETA Form 9141. Nor does the NPWC make any evaluation of the substantial equivalence of the alternative job requirements to the primary minimum job requirements listed. That evaluation will continue to be made in the adjudication of the Application for Permanent Employment Certification.
Revised June 21, 2012
The employer may request an hourly wage by entering "Request Hourly Wage" in the Job Duties block (D.a.6) of the ETA Form 9141.
Please note: Due to the nature of some occupations where the norm for the occupation is not the standard 2080 hour work year, the Occupational Employment Statistics (OES) survey does not provide an hourly wage. In such instances, the NPWC will not be able to issue the requested hourly wage, as will be indicated in a note on the prevailing wage determination.
Revised June 21, 2012
AFFILIATED OR RELATED ENTITY
R&D positions directly conduct or support a research effort. Non-R&D positions support administrative functions such as finance and technical facilities support. Employers should provide clear job duties that explain if the position supports R&D or non-R&D.
When the position combines elements from both R&D and non-R&D occupations, the NPWC will select the occupation with the highest wage in the same manner as other combinations of occupations. The PWD will only show the occupation with the highest wage.
There are nine standard occupations with wage data reported into the categories of R&D and non-R&D:
|
Soc Title |
ACWIA Code |
ACWIA Title Non R&D |
ACWIA Code |
ACWIA Title R&D |
|
17-2141 |
Mechanical Engineers |
17-2143 |
Mechanical Engineers, Non R&D |
17-2144 |
Mechanical Engineers, R&D |
|
17-2072 |
Electronics Engineers, Except Computer |
17-2075 |
Electronics Engineers, Except Computer, Non R&D |
17-2076 |
Electronics Engineers, Except Computer, R&D |
|
17-2071 |
Electrical Engineers |
17-2073 |
Electrical Engineers, Non R&D |
17-2074 |
Electrical Engineers, R&D |
|
17-2061 |
Computer Hardware Engineers |
17-2062 |
Computer Hardware Engineers, Non R&D |
17-2063 |
Computer Hardware Engineers, R&D |
|
17-2051 |
Civil Engineers |
17-2052 |
Civil Engineers, Non R&D |
17-2053 |
Civil Engineers, R&D |
|
15-1121 |
Computer Systems Analysts |
15-1052 |
Computer Systems Analysts, Non R&D |
15-1053 |
Computer Systems Analysts, R&D |
|
15-1133 |
Software Developers, Systems Software |
15-1036 |
Software Developers, Systems Software, Non R&D |
15-1037 |
Software Developers, Systems Software, R&D |
|
15-1132 |
Software Developers, Applications |
15-1034 |
Software Developers, Applications, Non R&D |
15-1035 |
Software Developers, Applications, R&D |
|
15-1131 |
Computer Programmers |
15-1022 |
Computer Programmers, Non R&D |
15-1023 |
Computer Programmers, R&D |
June 21, 2012
In the 2000 iteration of the Standard Occupational Classification (SOC) codes used by the Bureau of Labor Statistics in the Occupational Employment Statistics wage surveys, the job opportunity of "Ski Instructors and Snowboard Instructors" was categorized under SOC classification 39-9031, Fitness Trainers and Aerobics Instructors. However, the SOC reclassification that was finalized in 2010 updated this occupation. The new SOC for this position is 25-3021, Self-Enrichment Education Teachers, which now encompasses most sports instructors.
June 21, 2012
In the 2000 iteration of the Standard Occupational Classification (SOC) codes used by the Bureau of Labor Statistics in the Occupational Employment Statistics wage surveys, the job opportunity of "Oyster Shuckers" was categorized under SOC classification 51-9198 - Helpers - Production workers. However, the SOC reclassification that was finalized in 2010 clarifies the occupation to be used by listing Oyster Shucker as a sample title under the revised SOC of 51-3022, Meat, Poultry, and Fish Cutters and Trimmers. The O*Net crosswalk has not been updated to incorporate changes from the 2010 SOC and continues to provide the old code.
June 21, 2012
The NPWC researches entities that may be covered by the wage provisions of ACWIA. When a definitive decision cannot be reached, the NPWC will send a Request for Information (RFI) for documentation demonstrating how the employer meets the definition of an affiliated or related nonprofit entity.
The first element is the non-profit status of the employer. A letter issued from the Internal Revenue Service stating the employer, under the FEIN on the application, has an appropriate non-profit status, will typically be sufficient for this purpose.
The second element is affiliation with the institution of higher education, which may be demonstrated through any of the following:
1) Shared ownership of the nonprofit entity and the institution of higher education either directly or by a parent entity. This includes branch, subsidiary and cooperative relationships.
2) An oversight group (board, committee, et al) with the authority to direct the members of both the nonprofit entity and the institution of higher education.
3) An agreement requiring a position to have decision making authority in both entities. For example, the position of Chief of Radiology at the Hospital will also be the Chair of the Radiology Department at the Medical School.
4) Shared responsibility for conducting the qualifying activity. For example, the Medical School and the Hospital jointly establish the curricula for medical resident and fellowship programs. This includes situations involving several entities, such as a residency program where specific portions take place at separate hospitals and/or medical schools. In such a situation, all of the non-profit entities involved in the residency program would be considered affiliated or related nonprofit entities and covered by the ACWIA wage provisions.
Examples where an institution does not meet ACWIA wage coverage include:
1) Agreements where the institution of higher education is in essence 'renting space' from the requesting entity. Example statement: The Hospital will allow access to its facilities at the reimbursement rate negotiated each year and will remit appropriate charges for medical services provided to the Medical School.
2) Conferring of unpaid faculty status upon a person in the employ of the requesting nonprofit entity by an institution of higher education.
Additionally, the number of cross-designated employees in relation to the total number of employees in the particular program is a relevant factor in establishing affiliation. When a requesting employer has a notable number of employees cross-designated with an institution of higher education, especially when combined with a notable number of participants, then ACWIA wage coverage is indicated. For example, a large hospital employs 80 physicians and 200 nurses. 40 of those physicians and 100 of those nurses participate in the clinical training of 120 medical residents and 200 nursing students from a particular institution of higher education; the ratio is notable and ACWIA wage coverage is appropriate. Conversely, when the numbers of cross-designated employees are low, then coverage may not be indicated. For example, a mid-sized hospital has a single surgeon with part time faculty status at a particular medical school and a single fellow in training. The number of cross-designated employees and the number of participants are so small that ACWIA wage coverage is not appropriate.
June 21, 2012
PERM PREVAILING WAGES
Must I list alternative job requirements on the ETA Form 9141? Is there a section on the ETA Form 9141 where I can list the alternative requirements?
If an employer intends to accept alternative job requirements and to list such requirements on the ETA Form 9089, the employer must list its alternative job requirements on the ETA Form 9141. Specifically, the employer should list its alternative job requirements in either the Special Requirements block (D.b.5) or the Job Duties block (D.a.6) of the ETA Form 9141. This is to reflect a line of BALCA decisions affirming our ability to require the same information on the job opportunity on both forms.
It should be noted, as will be indicated in a note on the prevailing wage determination, that the NPWC will not consider the alternative job requirements when making the wage determination; prevailing wage determinations will be based ONLY on the job requirements listed by the employer in the Minimum Requirements block (D.b) of the ETA Form 9141. Nor does the NPWC make any evaluation of the substantial equivalence of the alternative job requirements to the primary minimum job requirements listed. That evaluation will continue to be made in the adjudication of the Application for Permanent Employment Certification.
Revised June 21, 2012
On December 23, 2011, the President signed into law the Consolidated Appropriations Act, 2012. The legislation contains language prohibiting the Department from implementing the Wage Rule during the 2012 fiscal year. Based on Congressional intent to continue to implement the current H-2B regulations, the Department has published a Final Rule extending the effective date of the Wage Rule to apply to work performed on and after October 1, 2012. The Final Rule is accessible here.
The Department’s H-2A regulations at 20 CFR 655.120(l) provide that employers must pay their H-2A workers and workers in corresponding employment at least the highest of: (i) the Adverse Effect Wage Rate (AEWR); (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreed-upon collective bargaining wage, if applicable; or (v) the Federal or State minimum wage, in effect at the time the work is performed.
On November 18, 2011, the President signed into law the Consolidated and Further Continuing Appropriations Act, 2012, Public Law 112-55. The legislation contains language prohibiting the Department from implementing, administering, or enforcing, before January 1, 2012, the H-2B Wage Rule. Based on Congressional intent to continue to implement the current H-2B regulations, the Department has published a Final Rule extending the effective date of the Wage Rule to apply to work performed on and after January 1, 2012.