Prevailing Wage Determinations and the Four Wage Levels
The wage level is not chosen. It is assembled from the requirements the employer itself wrote into the job description, one step at a time, and the employer that inflates its requirements pays for the inflation on every paycheck for years.
The rule in short
A prevailing wage determination is requested on Form ETA-9141 from the National Prevailing Wage Center and states a wage for the occupation in the area of intended employment at one of four levels. The level starts at entry and rises with experience beyond the occupational norm, education above the norm, supervisory duties, licensing and special skills. A determination is valid for a stated window and the filing must occur inside it.
A prevailing wage level is not selected from a menu. It is built, step by step, from the requirements the employer wrote into its own job description. Each requirement that exceeds what the occupation normally demands adds to the level, and each addition raises the wage the employer will owe for the life of the sponsorship.
Who issues the figure and on what form
A determination is requested on Form ETA-9141, filed electronically with the National Prevailing Wage Center. The request states the job title, the duties, the minimum education, the minimum experience, any license required, any supervisory responsibility, any special skills, and the address of the place of employment.
The center matches the description to a standard occupational classification, then reads the wage for that occupation in that area from the published survey at the level its analysis produces. Nothing in the process is negotiated. The center is reading the employer's own description back to it.
How a level is assembled
The analysis starts at the bottom. Level one is the wage for an entry position: limited judgment, close supervision, tasks performed to gain experience. From there each factor that exceeds the occupational norm moves the analysis up.
Experience is the first input. Where the employer demands more years than the occupation ordinarily requires, the level rises. Education is the second. A demand for a degree above the occupational norm adds a step, while a demand that matches the norm adds nothing. Supervisory duties add a step where supervision is not already part of the occupation. A required license adds a step where the occupation does not ordinarily demand one. Special skills stated as requirements add a step where they exceed the occupational description.
The arithmetic is deliberately mechanical. Its practical effect is that a hiring manager who lists preferred qualifications as requirements has just committed the employer to a higher wage than the position warrants.
Two drafting habits cause most of the damage. The first is combining a technical role with a management role in one description, which adds a supervisory step to a position that supervises nobody. The second is listing a certification as required when the employer would hire a candidate without it. Each addition survives the whole sponsorship, because the wage stated at filing is the wage owed afterward.
| Level | Typical description | Supervision received | What usually drives it |
|---|---|---|---|
| One | Entry performance of routine tasks | Close | No experience demanded beyond the norm |
| Two | Qualified performance with some judgment | Regular | Modest experience above the norm |
| Three | Experienced performance, independent judgment | Limited | Substantial experience, or a license |
| Four | Fully competent, plans and leads work | Minimal | Supervision plus advanced education |
A job description written to impress a hiring committee raises the wage level, and it also raises the recruitment standard the employer must apply to domestic applicants. Requirements above the occupational norm must be justified, and the test is set out under business necessity. Employers routinely discover at audit that the requirements they wrote to describe an ideal candidate now describe an obligation they cannot defend.
Validity and the window to file
A determination is valid from a stated start date through a stated end date, and the window is set by the center within a range the regulation fixes. The application must be filed within the validity period, or the recruitment must be under way within it, depending on the program. A determination that expires before filing must be requested again, and the second figure is often higher than the first.
Sponsors managing many cases usually calendar the expiry the day the determination arrives. The recruitment steps have their own timing windows, which must fit inside the wage validity window rather than beside it. Those windows are set out under the required recruitment steps and the order they must follow.
Challenging a determination
An employer that disagrees with the level or the figure requests review from the center that issued it, within the period the regulation states, on the record that was before the center. New evidence is not accepted at that stage. If the center affirms, the employer may seek review by an administrative law judge and then by the appellate board.
The realistic alternative is to file a corrected request. Where the original description overstated the requirements, restating them accurately produces a lower level faster than any appeal will. Where the description was accurate, the appeal is unlikely to succeed, because the determination is a reading of that description. An employer that expects to contest a determination is generally better served by having labor certification attorney involvement before the request is submitted rather than after the level comes back.
What the figure obligates
The determination sets a floor, not the wage. The obligation in the temporary program is the higher of the prevailing wage and the actual wage paid to similarly employed workers at the same establishment, and the second figure is often the higher of the two. The documentation supporting it is described under the actual wage obligation and the memorandum behind it.
The obligation also runs continuously once employment begins, including through periods when no work has been assigned, which is covered under the duty to pay from the first day. Employers accustomed to other regulated pricing regimes will recognize the structure: the figure is defensible only if the inputs behind it were, in the same way that allowable, allocable and reasonable costs stand or fall on the record supporting each element.
Points to carry away
- A determination is requested on Form ETA-9141 and issued by the National Prevailing Wage Center.
- The four levels correspond to entry, qualified, experienced and fully competent performance of the occupation.
- The analysis begins at the lowest level and rises only where the employer's stated requirements exceed the occupational norm.
- Supervisory duties, a required license and special skills each add to the level independently.
- A determination is valid for a defined window and the application must be filed within it.
- Review of a determination is requested from the issuing center before any appeal is available.
Questions readers ask
May an employer use a private salary survey instead of the government determination?
The two programs differ. In the permanent program the center's determination governs, and an employer that wants a survey used must submit it with the request for the center to accept or reject. In the temporary program an employer may rely on an independent authoritative source or another legitimate source, but it must retain the survey, its methodology, its geographic scope and its date range in the public access file. A survey that cannot be documented is worse than no survey.
What is the area of intended employment?
It is the area within normal commuting distance of the place of employment, which is usually but not always the metropolitan statistical area. Locations outside a metropolitan area are treated by commuting distance rather than by county lines. The concept matters because the wage figure changes with the area, so a worker moved to a different labor market may be underpaid at a rate that was lawful at the previous site. Each place of employment is measured on its own.
Does paying above the determined wage cure a level that was set too low?
Paying more than the required wage is always permitted and generally resolves the wage obligation. It does not resolve a mismatched level in the permanent program, where the level must correspond to the requirements actually stated on the application. An application describing a senior position at an entry level rate is vulnerable even if the worker is paid generously, because the certification rests on the accuracy of the stated requirements rather than on the employer's generosity.
Sources
- eCFR — 20 CFR 656.40, Determination of prevailing wageThe method for setting the prevailing wage and the validity period of a determination.
- eCFR — 20 CFR 656.41, Review of prevailing wage determinationThe request for review, the deadline and the route to further appeal.
- eCFR — 20 CFR 655.731, The wage requirementThe alternative wage sources available in the temporary program and the documentation each needs.
- Foreign Labor Application Gateway — Prevailing wagesThe filing system for a determination request and the program guidance.
- Foreign Labor Application Gateway — Wage searchThe published wage data by occupation, area and level.
- Cornell Legal Information Institute — 8 U.S.C. 1182, Inadmissible aliensThe statutory prevailing wage provisions governing both programs.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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