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Immigration Law

DOLETA on New Wage Rule

DOLETA, Oct. 6, 2020

"The U.S. Department of Labor announced an Interim Final Rule (IFR) that will help America’s workers remain competitive by reforming the prevailing wage methodology for several foreign worker programs.

After a significant review of the Permanent Employment Certification, H-1B, H-1B1, and E-3 visa programs, the Department has determined that the existing wage structure leads to potential abuses of these programs that can cause wage deflation and stagnation for U.S. workers.

The IFR will improve the accuracy of prevailing wages and more effectively protect the recruitment and wages of America’s workers by eliminating any economic incentive or advantage in hiring foreign workers on a permanent or temporary basis in the U.S.

The IFR amends the Department’s regulations governing certain labor certifications at 20 CFR Parts 655 and 656, to incorporate changes to the methodology for computing prevailing wage levels under the Department’s four-tiered wage structure. The Department believes these changes to the wage structure based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. The IFR does not change OFLC’s standard procedures for reviewing employers’ job opportunities and determining prevailing wage levels for the assigned Standard Occupational Classification (SOC) code.

On October 6, 2020, the Department’s IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, will be placed on public inspection at the Federal Register. In advance of the IFR’s publication in the Federal Register, a copy of the IFR submitted to the Office of the Federal Register (OFR) is also available on the Office of Foreign Labor Certification’s (OFLC) website.

The Department expects the IFR will be published, with an immediate effective date, in the Federal Register on October 8, 2020. The Department will be accepting public comments on the IFR for 30 days from the date of publication in the Federal Register.

Although the OFR may make minor technical edits to the version of the IFR posted with today’s announcement, the substance of the IFR will remain the same. The version to be published in the Federal Register will be the official version that amends the current regulations.

OFLC has prepared Frequently Asked Questions to help stakeholders better understand the Wage Protections IFR.

Effect of the Interim Final Rule:

The IFR will only apply to the following:

  • An Application for Prevailing Wage Determination, Form ETA-9141, pending with OFLC's National Prevailing Wage Center (NPWC) as of the effective date of the regulation;
  • An Application for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after the effective date of the regulation; and
  • Labor Condition Application for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, filed with OFLC on or after the effective date of the regulation 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.

Implementation Schedule:

  • On October 8, 2020, employers and their authorized attorneys or agents will be able to:
    • Access revised OES prevailing wage data for each SOC and area of intended employment at https://www.flcdatacenter.com/;
    • Use the Foreign Labor Application Gateway (FLAG) system to submit LCAs at https://flag.dol.gov/; and
    • Continue to submit requests for prevailing wage determinations using the FLAG system.
  • On October 13, 2020, the NPWC will begin issuing prevailing wage determinations using the revised OES prevailing wage data computed for the Interim Final Rule. 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 and reduce the risk of unintended system problems or errors that may impact customers and OFLC staff.
  • OFLC will continue to issue non-OES based prevailing wages (e.g. employer-provided surveys or collective bargaining agreements) without delay."