IMPLICATIONS OF THE NEW DEPARTMENT OF LABOR WAGE LEVELS

Effective October 8, 2020, the Department of Labor (DOL) issued a new rule dramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers.  The new rule changes the computation of the four levels of wages when the DOL is using the Occupational Employment Statistics (OES).  For more detail about these changes, you can read our previous blog post on the rule.

A prevailing wage determination can only be issued by the DOL. The prevailing wage is based on the job duties, job requirements, and job location as provided by the employer on a prevailing wage request.  The prevailing wage for an H-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to be paid by his or her employer upon approval of the H-1B or green card.

Frequently, employers and foreign nationals review the Foreign Labor Certification (FLC) Data Center website which publishes the OES wages and refer to the OES wages as the “prevailing wages.” The FLC Data Center wages are not prevailing wages. A prevailing wage determination (PWD) can only be issued by the DOL.

The OES is only one wage library the DOL can consult when issuing a PWD.  The DOL can also review private wage surveys, if the survey is provided by the employer at the time the wage request is made.  In order for a private wage survey to be accepted by the DOL, it must meet certain, specific requirements.  For more information about those requirements and which surveys might apply to your cases, please contact MU.

The new DOL wage rule only applies to wage determinations issued by the DOL or LCAs certified by the DOL on or after October 8, 2020.  Approved H-1Bs or I-140s are not required to be updated with the new wage calculations.  In addition, wage determinations which have been issued by the DOL and are valid through 2021 are not required to be updated.

Finally, there are several law suits which have already been filed challenging the new rule.  Please continue to read our blog for regular updates on these pending law suits and the wage rule.