I. Generally

A. Regulatory requirement of payment of prevailing wage

Under § 656.20(c)(2), an employer is required to offer a wage that equals or exceeds the prevailing wage determined under § 656.40. Section 656.40 directs that occupations subject to the Davis-Bacon Act or the Service Contract Act have the prevailing wage determined under those Acts (see supra Division II) and that other occupations have the prevailing wage determined by the average wage paid to workers similarly employed in the area of intended employment (see supra Division III).

As to the posting of the prevailing wage during recruitment, see Chapter 22, III, E, 3 (Recruitment Efforts).

B. Failure to comply with wage determination or to justify lower wage

Where the employer is notified that its job offer is below the prevailing wage, but fails to either raise the wage to the prevailing wage or justify the lower wage it is offering, certification is properly denied. Editions Erebouni, 90-INA-283 (Dec. 20, 1991); Trilectron Industries, Inc., 90-INA-188 (Dec. 19, 1991); Sumax Industries, 90-INA-502 (Dec. 4, 1991); Courtesy Caterers, 89-INA-56 (Jan. 31, 1990); General Aerospace Corp., 88-INA-480 (Jan. 11, 1990); Ashwin L. Shaw, 88-INA-290 (Nov. 2, 1989); Care West-Garfield Nursing Center, 88-INA-483 (Oct. 26, 1989); Emil Stykiel, 88-INA-67 (Mar. 1, 1989).

C. Prevailing wage determined at date DOL issues certification

The Department of Labor's regulation at 20 C.F.R. § 656.20(c)(2) and the terms of 8 U.S.C. § 1182(a)(14) are forward-looking -- the prevailing wage is determined as of the date DOL reviews the application and issues the certification. The Immigration and Naturalization Service, on the other hand, is concerned that an employer is able to pay the wage at the time certification is first sought, since visa priority is established by that date. Masonry Masters, Inc. v. Thornburgh, 875 F.2d 898 (D.C. Cir. 1989).

D. Prior payment of alien less than the prevailing wage

The Department of Labor regulations governing payment of the prevailing wage rate are applicable to the job for which labor certification is sought. Therefore, the CO may not deny certification based upon the fact that the alien was paid less than the prevailing wage rate in prior job positions. The Kroenke Group, 90-INA-318 (July 12, 1991).