Prevailing Wage Determination Amendments

Prevailing wage determinations are used to confirm the Department of Labor does not negatively affect the wages and job opportunities of U.S. workers based on the employment of immigrant and nonimmigrant workers admitted. The prevailing wage data generated by the Bureau of Labor Statistics to exercise the Interim Final Rule was uploaded by the Office of Foreign Labor Certification on October 7, 2020 and published in the Federal Register the following day. The wages are for the term beginning on October 8, 2020 to June 30, 2021 and determinations issued by the National Prevailing Wage center will reflect the new data.

The DOL has amended part 20, sections 656.40 and 655.731 to reflect adjustments to determine prevailing wages in the H-1B, H-1B1, E-3, EB-2, and EB-3 classifications. The following paragraphs from the Permanent Labor Certification 20 CFR 656.40 are amended: paragraphs (a), (b)(2), and (b)(3). The most significant changes are outlined in paragraph (b)(2)(i) which directly affects the Level I Wage and adjusting it from the 17th percentile to the 45th percentile of the relevant OES wage distribution. In addition, Level IV Wage will adjust from the 67th percentile to the 95th percentile. There were no proposed amendments for Level II or Level III, however Level II will increase from the 34th percentile to the 62nd percentile and Level III from the 50th percentile to the 78th percentile. The revisions in §655.731 establishes the use of BLS’s OES survey to determine the prevailing wages for H-1B and H-1B1 and E-3 visa classifications and added how the determinations are made by the OLFC NPC is consistent with §656.40(b)(2).

These amendments will affect the wage levels of EB-2 and EB-3 immigrants as well as H-1B nonimmigrants and take effect on October 8, 2020. However, DOL will not apply the amendments to “any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs, either through reopening or through issuing supplemental prevailing wage determinations or through notices of suspension, invalidation, or revocation.”

Amended H-1B regulations will be implemented on December 7, 2020, including changing the definition of “specialty occupations” and “employer-employee” requirements, as well as increase the scrutiny of H-1B users. These amendments are made to “prevent displacement of the American workforce by foreign labor” due to the millions of U.S. workers who were laid off in the past six months by employers who hire foreign nationals. These adjustments are used to ensure levels reflect the wages paid to U.S. workers with similar qualifications to their foreign counterparts, as well as ensuring these is no wage suppression of the foreign worker.

Resources:

https://www.aila.org/advo-media/aila-practice-pointers-and-alerts/dol-ifr-changes-computation-prevailing-wage

https://www.federalregister.gov/documents/2020/10/08/2020-22132/strengthening-wage-protections-for-the-temporary-and-permanent-employment-of-certain-aliens-in-the

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Sheila Starkey Hahn

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Sheila Starkey Hahn has devoted her entire legal career to the practice of immigration law. With offices in up-state New York, Memphis and Washington DC, Ms. Starkey Hahn focuses her practice on employment-based immigration. She assists established c…

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