DOL DRAMATICALLY RAISESPREVAILING WAGES

OnJanuary 14, 2021 the US Department of Labor (DOL) published its FinalRuleregarding the calculation of prevailing wages. Readers of our blog will note that the DOL previously issued an InterimRule about calculation of prevailing wages which was struckdown by Federal Judgeslate last year.  The Final Rule publishedon January 14, 2021 is the updated version of the Interim Rule.

 

Summaryof the Final Rule

The FinalRule will dramatically change the calculation of prevailing wage levelsresulting in significantly higher prevailing wages.  While the new percentiles are lower than the October2020 Interim Rule’s percentiles, the new percentiles arestill considerably higher than the current percentiles. 

 

Wage Level

Current Percentile

October 2020 Interim Rule Percentile

January 2021 Final Rule Percentile

1

17

45

35

2

34

62

53

3

50

78

72

4

67

95

90

 

TheFinal Rule applies to prevailing wages applicable to applications for H-1Bs,H-1B1s, E-3s, and Green Cards.

 

TransitionPeriods

TheFinal Rule attempts to provide employers and foreign nationals an opportunityto adapt to the change in calculations.  Forthose who did not have an I-140 approval in hand as of October 8, 2020,the transition will occur over an eighteen-month period:

  • StageOne, Present to June 30, 2021: Current Percentiles remain in effect
  • StageTwo, July 1, 2021 to June 30, 2022: 90% of the Final Rule percentile
  • StageThree, July 1, 2022 and Beyond: 100% of the Final Rule percentile

Forthose who did have an I-140 approval in hand as of October 8, 2020, andso are applying for a post-six year H-1B extension, the transition will occurover an three and a half year period:

  • StageOne, Present to June 30, 2021: Current Percentiles remain in effect
  • StageTwo, July 1, 2021 to June 30, 2022:85% of the Final Rule percentile
  • StageThree, July 1, 2022 and Beyond: 90% of the Final Rule percentile
  • StageFour, July 1, 2023 and Beyond: 95% of the Final Rule percentile
  • StageFive, July 1, 2024 and Beyond: 100% of the Final Rule percentile

The American Immigration Lawyers’ Association (AILA) reported that President-ElectBiden’s transition team will issue an immediate 60-day delay to theimplementation of this and other last-minute regulations promulgated by theTrump presidency, but how the Biden Administration will move forward remainsunknown.

 

AlternativeWage Surveys

Alternative Wage Surveysmay be accepted by the DOL if the survey meets specific requirements.  Employers concerned about the Final Rule andits implications for their employees may want to consider using an AlternativeWage Survey in place of the DOL’s wage survey. For more information about which wage surveys may be accepted by theDOL, please contact your MU attorney.