What changed
OFLC’s Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs, revised November 2009, is the document that drives skill-level placement for PERM (and for H-1B and other DOL programs). It superseded earlier OFLC memoranda and instituted the five-factor worksheet that the National Prevailing Wage Center (NPWC) uses to assign Level I, II, III, or IV when the employer files Form ETA-9141. The methodology has not been formally replaced since.
The wage assigned at each level corresponds to a percentile of the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) survey for the Standard Occupational Classification (SOC) code in the worksite metro area: Level I (entry) tracks the 17th percentile, Level II (qualified) the 34th percentile, Level III (experienced) the 50th percentile (median), and Level IV (fully competent) the 67th percentile, subject to legislative or administrative adjustments.
Why it matters
The skill level the NPWC assigns determines the prevailing wage the employer must offer on the PERM ETA-9089 (and pay throughout PERM-based green-card processing). Underclassification — picking Level I when the duties are Level III — saves money in the short term and creates liability in the long term: an underclassified PERM can be denied at adjudication, audited later, or undermined at I-140 if the underlying labor market test was for a position that no longer matches the offered role.
Overclassification is also costly: picking Level IV when the role is genuinely Level II raises the wage floor, makes the PERM recruitment harder (because U.S. workers at the actual market wage are more available), and may make the position infeasible.
The November 2009 worksheet is the way OFLC sees the job, so the ETA-9141 should be written the same way.
Way forward
1. Begin every position at Level I. The worksheet starts at one point. The position is then assessed against four factors, each of which can add one point.
2. Step 1 — Experience. Compare the position’s required experience to the experience requirement in the SOC code’s O*NET Job Zone definition. If the required experience exceeds the Job Zone’s typical preparation, add one point. The thresholds are tied to O*NET’s Specific Vocational Preparation (SVP) ranges for the Job Zone — Job Zone 4 (most professional occupations) is SVP 7 (two to four years of preparation), Job Zone 5 is SVP 8+.
3. Step 2 — Education. If the required education exceeds the Job Zone’s typical education, add one point. The benchmark for Job Zone 4 is a bachelor’s degree; requiring a master’s is one factor above the benchmark.
4. Step 3 — Special skills, licenses, and certifications. If the position requires a license, certification, or special skill not typical for the SOC code, add one point. Examples include a professional engineering license for a non-PE-track engineer role, board certification for a clinical position, or a foreign language requirement that is not standard for the occupation.
5. Step 4 — Supervisory duties. If the position requires the worker to supervise others or to exercise significant managerial authority, add one point.
6. Sum the points. One point = Level I. Two points = Level II. Three points = Level III. Four points = Level IV. Special cases (positions requiring an unusual combination of skills, or positions with extensive autonomy and judgment) can push a Level III into Level IV.
Writing an ETA-9141 the NPWC can score quickly
A well-written ETA-9141 makes the skill-level analysis trivial for the NPWC. Include:
- The SOC code the employer believes correctly classifies the position, with a brief justification keyed to O*NET task statements.
- The minimum education requirement, the years of progressive experience required, and any specific skill, license, or certification requirements.
- A clear statement of supervisory authority — number of direct reports, hire/fire authority, budgetary authority.
- The worksite address and metro area.
Mismatches between the SOC code, the duties, and the requirements are the leading cause of NPWC pushback and re-determination.
When to challenge a PWD
Under 20 CFR 656.41, an employer may request review of the NPWC’s PWD by the Center Director, and then administrative review by BALCA. Common grounds for challenge include the use of an OEWS wage when a private survey was properly submitted, application of the wrong SOC code, or misallocation of skill level.
How the wage moves between levels
OEWS-based prevailing wages change every July following the Bureau of Labor Statistics’ annual OEWS data release. A PWD issued before that release uses the old data; one issued after, the new. Employers planning PERM filings in late spring should consider whether to file the ETA-9141 before or after the OEWS update — sometimes the answer is materially different.
Disclaimer
This article is general information from a software company, not legal advice from a law firm. PWD skill-level analysis under OFLC’s November 2009 Prevailing Wage Determination Policy Guidance is fact-specific and turns on small drafting choices in the ETA-9141. Verify everything against the primary source — the OFLC Prevailing Wage Determination Policy Guidance (Nov. 2009 revision) and 20 CFR 656.40 / 656.41 — and engage qualified counsel before submitting an ETA-9141.