The Department of Labor (DOL) issued an interim final rule on October 8, 2020, amending Employment and Training Administration (ETA) regulations governing prevailing wages for nonimmigrant H-1B, H-1B1, and E-3 foreign workers and immigrant EB-2 and EB-3 and foreign workers. Specifically, DOL is increasing prevailing wages by changing their computation under the existing four-tier wage structure.
The agency said the changes are intended to “better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. This update will allow DOL to more effectively ensure that the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.”
According to DOL’s Office of Foreign Labor Certification (OFLC), the interim final rule will apply to:
- Applications for Prevailing Wage Determination, Form ETA-9141, pending with OFLC’s National Prevailing Wage Center (NPWC) as of the effective date of the regulation;
- Applications for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after the effective date of the regulation; and
- Labor Condition Applications for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, filed with OFLC on or after the effective date of the regulation where the Occupational Employment Statistics survey data is the prevailing wage source, and where the employer did not obtain the prevailing wage determination from the NPWC before the effective date of the regulation.
According to some practitioners and analysts, there was insufficient time for public comment, as the rule was effective immediately, and the DOL’s methodology inflates the prevailing wage. As a result of prevailing wage inflation, the rule is likely to have an adverse effect on U.S. employers, especially cost-sensitive entities like nonprofits, universities, hospitals, start-ups, and small businesses. The rule and other recent anti-H-1B actions are also likely to push some employers and foreign workers to relocate to other countries.
Litigation is expected. Although the rule is effective immediately, comments may be submitted until November 9, 2020.
- DOL interim final rule
- OFLC notice
- “Featured Issue: DHS and DOL Rules Altering the H-1B Process and Prevailing Wage Levels” (data collection form for potential plaintiffs)
- “DOL’s H-1B Wage Rule Massively Understates Wage Increases by Up to 26 Percent.”
- “The New Minimum Salaries in Finance and Tech for H-1B Visas,” efinancialcareers
- “Trump Administration Issues Two New Rules To Restrict H-1B Visas,” Forbes
- “Big Tech’s Fight for High-Skilled Visa Holders,” Axios
- Foreign Labor Certification Data Center