Effective October 8, 2020, theDepartment of Labor (DOL) issued a new ruledramatically increasing prevailing wages for H-1B, EB-2, and EB-3 workers. The new rule changes the computation of thefour levels of wages when the DOL is using the Occupational Employment Statistics(OES). For more detail about thesechanges, you can read our previousblog post on the rule.
A prevailing wage determination can onlybe issued by the DOL. The prevailing wage is based on the job duties, jobrequirements, and job location as provided by the employer on a prevailing wagerequest. The prevailing wage for anH-1B, EB-2, or EB-3 worker, is the wage the foreign national is required to bepaid by his or her employer upon approval of the H-1B or green card.
Frequently, employers and foreignnationals review the Foreign Labor Certification (FLC) Data Center website whichpublishes the OES wages and refer to the OES wages as the “prevailing wages.” TheFLC 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 theDOL can consult when issuing a PWD. TheDOL can also review private wage surveys, if the survey is provided by theemployer at the time the wage request is made. In order for a private wage survey to be accepted by the DOL, it mustmeet certain, specific requirements. Formore information about those requirements and which surveys might apply to yourcases, please contact MU.
The new DOL wage rule only applies towage determinations issued by the DOL or LCAs certified by the DOL on or afterOctober 8, 2020. Approved H-1Bs orI-140s are not required to be updated with the new wage calculations. In addition, wage determinations which havebeen issued by the DOL and are valid through 2021 are not required to beupdated.
Finally, there are severallaw suits which have already been filed challenging the new rule. Please continue to read our blog for regularupdates on these pending law suits and the wage rule.