by Roujin Mozaffarimehr
On October 7, 2020, the Department of Labor published an interim final rule (IFR) (85 FR 63918) that dramatically changes the calculation methodology of the prevailing wage for OES-based wage levels for all occupations. This new rule took effect immediately on October 8, 2020 and impacts wage rates for H-1Bs, H-1B1s, and E-3s, as well as prevailing wage determinations for PERMs.
Background and the Department of Labor’s rationale for making these changes
The H-1B classification requires that employers meet certain wage rate requirements for employing H-1B worker. Pursuant to the Immigration and Nationality Act (INA) at 212(n), employers are required to file a Labor Condition Application in which the employer:
(i) is offering and will offer during the period of authorized employment to aliens admitted or provided status as an H-1B nonimmigrant wages that are at least–
(I) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or
(II) the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available as of the time of filing the application.
These wage levels are also used for H-1B1s and E-3 programs, as well as the PERM program.
The IFR claims that its rationale for making changes to the existing computational methodology for the OES prevailing wage levels is to “improve program integrity” and “protect jobs of US workers” in response to COVID-19 to facilitate the country’s economic recovery. The IFR cites to President Trump’s Executive Orders and Proclamations in support, including the April 2017 Buy American and Hire American Executive Order (E.O. 13788), the June 2020 Suspension of Entry of Immigrants and Nonimmigrants Who Present a Risk to the United States Labor During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak Proclamation (Proclamation 10052), as well as the June 2020 Accelerating the Nation’s Economic Recovery from the COVID–19 Emergency by Expediting Infrastructure Investments and Other Activities Executive Order (E.O. 13927).
The IFR is immediately effective for all Labor Condition Applications filed with the DOL on or after October 8, 2020 for cases that use the OES survey data as the wage source. For PERMs, the rule will apply to applications for prevailing wage determinations (PWDs) that are filed or still pending as of October 8, 2020.
The IFR changes wage levels as follows:
|Wage Level||New Percentile||Old Percentile|
|Level I Wage:||45th percentile||17th percentile|
|Level II Wage:||62nd percentile||34th percentile|
|Level III Wage:||78th percentile||50th percentile|
|Level IV Wage:||95th percentile||67th percentile|
Wages are already updated on the OFLC Foreign Labor Certification Data Center website. For occupations in certain Metropolitan Statistical Areas (MSAs), certain occupations have listed “n/a” for all wage levels. DOL has instead providing the following instructions for such categories:
Leveled wages cannot be provided in Area XXXXX for the occupation code XX-XXXX due to limitations in the OES data. Employer provided surveys may be considered under the appropriate regulation, unless the provision of a survey is not permitted. The wage data may be at least: $100/hour, $208,000 a year.
It is unclear if the default wage for these occupations is now $208,000/year, or if this is a glitch. Members of the American Immigration Lawyers Association (AILA) H-1B Task Force have contacted the Department of Labor for clarification on this point. I am a member of this Task Force and will update this advisory once we have further information.
This rule is ripe for litigation—efforts are already underway. There are several efforts in process where attorneys are looking for plaintiffs. If you are interested in joining as a plaintiff, please contact MPLG as soon as possible.