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New DOL Rule to Change Prevailing Wages

A new DOL rule is expected to be published tomorrow that will significantly alter the prevailing wage rates. An advance copy released by the DOL can be found here. This new rule will apply to all types of immigration cases that utilize prevailing wages including most prominently H-1bs and EB2 and EB3 immigrant petitions. The new rule retains the 4 tier wage system however, it changes the data point that is associated with each level. Currently, the tiers track to the: 17th, 34th, 50th, and 67th percentiles of the data. Under the new system the tiers will track to the: 45th, 62nd, 78th, and 95th percentiles. The DOL states ” The Level II Wage shall be determined by first dividing the difference between Level I and Level IV by three and then adding the quotient to the computed value for Level I” As a practical matter, this means that an H-1b Level 2 wage will fall slightly below the current Level 4 wage and a Level 1 wage position will fall close to the Level 3 wage. As of this morning the on-line OES page has not been changed to reflect the new rule and it is not yet known whether the calculation will need to be done manually or will be reflected on-line. The new rule will go into effect immediately and apply to all new LCA’s filed and all PERM PWD’s that have yet to be adjudicated. PWD’s and LCA’s already issued will not be affected. To put into perspective what this Administration thinks about US employers who hire international talent, the DOL defended its decision to bypass the notice and comment period by stating it was necessary to “prevent the evasion by employers of the new wage requirements” Federal litigation is expected.

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