The first step to initiating an employer sponsored green card is to request the prevailing wage as part of the PERM process. This requires setting out the job duties and minimum requirements so that the Department of Labor can determine the wage. These prevailing wage determinations (PWDs) are now taking 5-6 months.
In the past we have been able to ascertain the wage in 99 out of 100 cases. This is not to brag, but just to emphasize a more consistent approach by DOL. However, since Trump took office, this consistency has flown out of the window. Anticipating the wage has become increasingly difficult, even for experienced practitioners.
Previously requiring a master’s degree and say 12 months of experience would result in a level 2 wage. However, we are now seeing level 3 and level 4 wages. Part of this appears to relate to travel requirements. For our IT consulting clients, we previously listed that the position required travel. Having been questioned by DOL our travel language has now morphed into a much more detailed statement which includes a statement that the candidate must be willing to relocate. This has unfortunately led to significantly higher wages.
Although other attorneys have also reported wage increases based on travel requirements, there is no formal guidance on what level of travel will result in a wage increase. However, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) have indicated that if travel is not normal to the occupation as per ONET then a travel requirement will result in an increase in the wage levels.
When including a travel requirement employers should consider including the following:
- Indicating the frequency of travel i.e. 1 to 2 times a month/ year etc.
- Indicating geographic scope of the travel i.e. whether it is purely domestic or international.
- Indicating the purpose of the travel i.e., where the travel is to attend training sessions, meetings etc.
Travel that is not normal to the occupation, results in an additional point being added when calculating the wage. Relocation adds another point. This means what was previously a level 2 wage is now likely a level 4 wage. Failure to include a specific travel requirement will likely result in a request for further information (RFI) from OFLC. Failure to respond to the RFI in 7 days or with more specific information could result in the prevailing wage not being issued. Should this happen employers would need to re-submit the prevailing wage request, further delaying the filing of the PERM case.
Conclusion
The only thing that is guaranteed under a Trump administration is uncertainty and surprise. Due to the uncertainty in the adjudication of prevailing wage requests employers now have to be more considerate of the minimum requirements for the position, including any travel or relocation requirements. It also means delaying the PERM recruitment until the wage has been received. No employer wants to pay for an expensive newspaper advertisement only to be faced with an exorbitant wage.
Please note July 1, DOL typically reviews and increases the wages, and therefore any prevailing wage determination issued after July 1, 2025, will likely have a higher wage.
If you have questions about travel/relocation requirements or prevailing wage determinations generally, please reach out to Chris Prescott at cprescott@patellegal.com.