The U.S. Department of Labor (DOL) is requesting public feedback to determine prevailing wage levels for several immigrant and nonimmigrant work visas. Interested individuals are asked to provide information on sources of data and methodologies for determining prevailing wage levels in the H-1B, H-1B1, E-3, among other programs.

In this blog, we define the Request for Information (RFI), and the concept of the prevailing wage in a nutshell.

What are prevailing wages?

For certain US visa categories like H-1B and E-3, the employer needs to show proof that the prevailing wage will be paid. While the H-1B visa category is not based on nationality, the E-3 visa is exclusively for Australian citizens, and the H-1B1 visa for nationals of Chile and Singapore. If an employer wants to hire individuals belonging to these categories, they have to make a prevailing wage request to the DOL. The process is time-consuming and is currently, it takes the DOL some months to deal with.

The Department may issue a permanent labor certification only after it determines that employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. Employers seeking to hire an immigrant foreign worker permanently, must attest that they will pay at least the prevailing wage and obtain a Prevailing Wage Determination (PWD) for the job opportunity from the Department.

Likewise, employers on the lookout for nonimmigrant foreign workers temporarily under the H-1B, H-1B1, or E-3 programs must attest that:

• they will pay the higher of the actual wage paid to employees with similar experience and qualifications
• or the prevailing wage for the occupational classification in the area of intended employment.

Though these employers are advised to obtain a PWD from the DOL, they have the option to use other sources, including a compliant employer-provided wage survey, to determine the prevailing wage.

What is the current RFI?

In a federal notification published on 2 April 2021, the DOL urged the public to respond to its request in the next 60 days. The request by the department's Employment and Training Administration (ETA) follows a prior announcement by the department proposing an 18-month delay in the effective date of a final rule changing on calculating the prevailing wage levels for certain immigrants and non-immigrant workers. The final rule, published in January 2021, affects employers that seek to employ foreign workers on a permanent or temporary basis through H-1B, H-1B1, and E-3 nonimmigrant visas.

According to DOL, the delay in the final rule will supposedly give officials enough time to calculate and validate prevailing wage data covering specific occupations and geographic locations, while allowing for necessary system modifications and the opportunity to get public feedback. organizations including the Bay Area Council over an initial version. It also mentions that the delay will lead to the reduction of transfer payments in the form of higher wages from employers to H-1B employees. Moreover, the proposed rule would delay the potential for deadweight losses to occur in the event that requires employers to pay a wage above what H-1B workers are willing to accept results in H-1B caps not to be met.

Questions put forth in the RFI

DOL wants the public to answer one or more of the following questions in their submissions:

1. What sources of data and methods are available that can be used alone, or in conjunction with other sources and methods, to approximate the wage level within an occupational wage distribution based on the OES wage survey and takes into account education, experience, and level of supervision for U.S. workers similarly employed across industries for specific occupation(s) and geographic area(s)?
2. Besides the OES wage survey, what other sources of data and methods are available that can be used alone, or in conjunction with other sources and methods, to approximate wage levels, by occupation and geographic area, specifically for U.S. workers similarly employed at institutions of higher education, nonprofit entities related to or affiliated with such institutions, nonprofit research organizations, and Governmental research organizations?
3. Should the Department continue to set wage levels at the same point within the OES distribution for all occupations and geographic areas or set wage levels at different points within the OES distribution for different groups of occupations and/or geographic areas? In case of the latter, what sources of data and methods are available that can be used alone, or in conjunction with other sources and methods, to approximate different wage levels for different groups of occupations, taking into account education, experience, and level of supervision for U.S. workers similarly employed across industries and geographic areas?
4. Other than the computation of an arithmetic mean or specific percentile within an occupational wage distribution based on the OES wage survey, are there any other statistical approaches or estimation techniques the Department should consider when computing the wage level(s) for occupation(s) and geographic area(s)?

Who can make submissions?

Submissions that address the above questions and provide useful information for the Department's consideration are invited by the RFI. Interested stakeholders, including members of the public, worker advocacy organizations and labor unions, employers, trade associations, public advocacy organizations, and others, including universities and research institutions, familiar with or interested in the prevailing wage determination methodology used in the PERM, H-1B, H-1B1, and E-3 programs are eligible to make submissions.

Earlier Revisions of Prevailing Wage Levels Based on the OES Survey

On October 8, 2020, the Department's Employment and Training Administration (ETA), published an Interim Final Rule (IFR), revising the methodology the Department had been using to determine prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs.

Since the Department concluded that the existing wage levels were artificially low and provided an opportunity for employers to hire and retain foreign workers at wages well below what their U.S. counterparts earn, the Department revised wage provisions at 20 CFR 655.731 and 656.40 to adjust the existing wage levels. 85 FR 63872, 63877. Specifically, the Department adjusted the four wage levels, respectively, from approximately the 17th, 34th, 50th, and 67th percentiles to approximately the 45th, 62nd, 78th, and 95th percentiles.

It was on January 14, 2021, that the Department published an IFR, with an effective date of March 15, 2021. With this final rule, the Department embraced several amendments to the wage methodology established by the IFR.

On March 12, 2021, based on public comments received on the Department's proposal to delay the effective date of the rule for 60 days to begin reviewing questions of fact, law, and policy raised in the final rule, a final rule delaying the effective date of the final rule until May 14, 2021, was published.

The DOL subsequently issued a notice of proposed rulemaking on March 22, 2021, to further delay the effective date of the final rule by 18 months or until November 14, 2022, along with corresponding proposed delays to the rule's transition dates.

Why this RFI?

The DOL states that it is “seeking information on the best available sources of data and methodologies that can be used in computing different levels of wages based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics (BLS), commensurate with experience, education, and level of supervision for a specific occupation and geographic area”. As per the Department, the information received in response to this RFI will be considered by the Department as it reviews the Final Rule.  

This is believed to result in the development of a future notice of proposed rulemaking that will revise the computation of prevailing wage levels more effectively. Doing so would ensure that the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed.

Some points to remember:

• If you wish to make submissions of comments, information, data, and supporting materials based on the questions provided in the RFI, make sure the DOL receives them on or before June 1, 2021.
• Responses to this RFI are voluntary and may be submitted anonymously.
• Written narratives providing factual or evidence-based information should also provide citations of sources, and copies of and links to the source material should be provided.
• If primary sources such as reports, research studies, or other sources of quantitative or qualitative data are used, the responders should provide details on the data-gathering techniques or methodologies and any supporting technical documentation.
• Make sure you don’t include any personally identifiable information or any information that you do not wish to make public.
• To submit written comments electronically, you may log in to Federal eRulemaking Portal. Please follow the instructions on the website for submitting comments.

Important Update

OFLC Announces New Form ETA-9141, Application for Prevailing Wage Determination, for Use Beginning May 3, 2021

The Office of Foreign Labor Certification’s (OFLC) revisions to the Form ETA-9141, corresponding appendix, and instructions have been approved by the Office of Management and Budget. The revisions are expected to better align information collection requirements with the Department’s regulations, provide greater clarity to employers on regulatory requirements, standardize and streamline information collection, thereby reducing employers’ time that goes into the preparation of applications. The new form must be used for all new prevailing wage applications beginning May 3, 2021.

Note: All initiated cases must be submitted before 6:00 a.m. EST when system maintenance will begin. Once the maintenance begins, initiated cases not yet submitted will be deleted and a new application using the new Form ETA-9141 will need to be created. Make your submissions by May 3, 2021, 5:59 a.m. EST.

By May 3, 2021, 8:00 a.m. EST (approximate) OFLC will only accept prevailing wage applications submitted using the new Form ETA-9141. OFLC will reject (without further review) prevailing wage paper applications submitted using the current version of Form ETA-9141.

‍

‍