Hathaway Children's Services, 91-INA-388 (February 4, 1994) (en banc)

The Board of Alien Labor Certification Appeals (BALCA) held in this en banc decision that the nature of the employer is not a relevant factor in making prevailing wage determinations. That is to say, prevailing wages must be determined by taking a “cross-industry survey,” in which all types of employers employing people in a particular occupational classification are included. Factors such as whether an employer is a small non-profit cannot be taken into consideration, and the wages paid to similarly employed individuals from all types of employers are placed in the survey pool.

However, subsequent legislation and rule making created an exception for workers employed by institutions of higher education and nonprofit or governmental research organizations, which provides that "In computing the prevailing wage level for an occupational classification in an area of employment... the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment." See INA 212(p)(1), 20 CFR 655.731(a)(2)(vii) [H-1B] and 20 CFR 656.40(e) [PERM].