On October 6, 2020, the U.S. Department of Labor (DOL) updated its regulations for wages paid to certain foreign workers with the named purpose of better protecting the jobs and wages of U.S. workers. The new wages were applicable as of October 7, 2020 at 7:00 pm.
AILA (American Immigration Lawyers Association) is preparing litigation against the DOL regarding this change. If you would like to be a named plaintiff in this matter, please read through to the end of this alert for information on how to join as a plaintiff. Both organizations and individuals may be included as named plaintiffs.
Prevailing wages established by the DOL impact the following nonimmigrant and immigrant categories:
- H-1B1 (Singapore/Chile Free Trade Agreement)
- E-3 (Australia Free Trade Agreement)
- Employment-based green card sponsorships based on a PERM application.
The Department believes these changes to the wage structure based on the Occupational Employment Statistics (OES) wage survey better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. The OES is the online wage survey administered by the Bureau of Labor Statistics and typically used in connection with H-1B petitions. In this regard, please note that the prevailing wage levels appear to have been increased by about 50% in many cases. Under the new wage structure, a Level 1 (entry level) Mechanical Engineer in Wayne/Oakland/Macomb county must be paid $92,830/year ($44.63/hour). This is up from $67,850/year ($32.62/hour). A Level 2 Mechanical Engineer working in the same geographic location must now be paid $114,421/year ($55.01/hour), up from $82,555/year ($39.69/hour).
The Interim Final Rule will only apply to the following:
- An Application for Prevailing Wage Determination, Form ETA-9141 (typically filed in connection with PERM sponsorship), pending with the National Prevailing Wage Center (NPWC) as of 10/8/2020.
- An Application for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after 10/8/2020.
- A Labor Condition Application for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, (filed in connection with H-1B, H-1B1 and E-3 petitions) filed on or after 10/8/2020 where the OES survey data is the prevailing wage source, and where the employer did not obtain the prevailing wage determination from the NPWC prior to the effective date of the regulation.
If the legal challenge to this rule is not successful, it may be worth investing in an independent wage survey that would be acceptable to the DOL. For now, I recommend taking a wait and see approach as the new rule could be blocked by the courts.
The Interim Final Rule will not impact the following:
- Prevailing Wage Determinations (ETA-9141) issued any time before 10/08/2020. Including those issued years ago in connection with a PERM and/or I-140 that has already been approved. This includes EB3 downgrades that are being prepared.
- Existing H-1B, H-1B1 or E-3 wages. So, there is no impact to the wage levels for employees who have a pending or approved H-1B, H-1B1 or E-3. However, the new wage structure will apply the next time the employer files an extension or amendment for the employee.
On October 13, 2020, the NPWC will begin issuing prevailing wage determinations (ETA-9141) using the new OES prevailing wage data. This brief delay in issuing wage determinations is necessary to complete the required technical changes to the FLAG system's internal prevailing wage determination module.
The DOL will be accepting public comments on the new rule through 11/9/2020. To submit a comment, go to https://beta.regulations.gov, click on the box for “Strengthening wage protections for the temporary and permanent employment of certain aliens,” then click on the “Comment” button in the upper left.
Join the litigation
AILA is seeking plaintiffs in an action challenging the new interim final rule on prevailing wage levels for H-1B, H-1B1, E-3 and PERM filings. Individuals and organizations interested in potentially joining the litigation as named plaintiffs should complete the form at this link as soon as possible as the litigation will be filed on a very expedited basis.