And you thought he was done. Not even close. When your goal is to destroy legal immigration and make it out of reach for everyone but, the richest, you keep fighting to the end and that is exactly what the Trump Administration is doing. Today, the DOL released in Final Rule format the rule they had released in interim final format in Oct. The new rule will go into effect in 60 days but, the new wages will not be released until July 2021 and there will be a phase-in period. If you recall, that rule was struck down by multiple Federal Courts due to a complete failure to follow the correct legal procedures and the substance of the rule was criticized relative to its faulty assumptions, poor methodology, and math. The DOL “considered” the public comments, in part pointing out the absurdity of having some entry level wages set at $208,000/year, reviewed the decisions from the Federal judges that ruled against them and then dismissed it all and re-issued a very similar rule. To their credit, they did correct some of their math errors. The new methodology sets the wage levels at the 35th,53rd,72nd, and 90th percentiles. A number of the Plaintiffs who pursued federal lawsuits over the interim final rule have already announced that they will be suing again. There is also an expectation that the Biden Administration will take a look at all of the regulations rushed through by the Trump Team so this may all be moot.
On Friday, the DOL, in compliance with a Federal Court order reverted back to the prior wage methodology which has been in effect for decades. When you check the FLCDataCenter now, the “old” wages will appear.
The DOL also announced that it will accept a request for reconsideration of any PWD issued using the “now struck down wages” regardless of when issued, if filed prior to Jan 4, 2021. The DOL did not indicate how long it would take them to re-issue new PWD’s or whether they would make those a priority but, typically a request for reconsideration takes at least 90 days.
As expected, the DOL has published its new immigration prevailing wage rules. To call the new wages “prevailing wages” is a misnomer and an utter falsehood. The new wages published are premium wages designed to discourage US employers from ever hiring an H-1b worker. The DOL has not even made any pretense of claiming that the new wages represent a market wage by declaring that for entry level employees, those described as “beginning level employees who
have only a basic understanding of the occupation” i.e. new grads, the wage is set at the 45th percentile of all wages in the occupation. The notion that an entry level employee should be paid at near the median wage level is absurd. The new wage scheme would have US employers in the Washington DC area pay an entry level Applications Developer i.e. Java programmer, a wage of $114,400 immediately after graduation. Under the prior prevailing wage rules, that level wage would be reserved for those employees with significant experience. Federal litigation is expected soon.
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.
The Board of Alien Labor Certification Appeals (BALCA) recently ordered a PERM Labor Certification application to be certified following the Certifying Officer’s denial due to a salary range mismatch between the PERM application and the Notice of Filing.
In re Institute for Environmental Health, Inc., 2013-PERM-01963 (BALCA 2016) involved the classic PERM situation where a discrepancy between what was listed on the 9089 and prefilling recruitment/notice documentation leads to a denial. The employer in this case attested on the 9089 that the prevailing wage was $25,022.40 and that the offered wage was $25,023. However, on the notice of filing the employer listed a salary range of $25,023 to $34,837.
Given the exacting requirements of the PERM process lawyers generally aim to have their recruitment mirror the requirements listed on the 9089. The so called “matchy-matchy” doctrine has aided many lawyers navigating tricky PERM waters. In this case, BALCA ruled that the regulations is “clear and unambiguous” on allowing a salary range in the notice of filing even though the 9089 only listed the offered wage.
I suspect the Board’s action (three years after the initial denial) saving this PERM from floundering was well received by the employer. I also suspect that when counsel of record files another PERM case they will match their 9089 and recruitment / notices.
Even if one is ultimately correct and wins on appeal, knowing how cases are handled by DOL officers will save employers heartaches and legal fees. For guidance on your PERM application, contact Hammond Law Group.
In Matter of Simona Luca Vricella, the Board of Alien Labor Certification Appeals (“BALCA”) continued its trend of upholding denials in cases where a clerical error occurred in drafting the ETA 9089. In this case, the employer submitted a labor certification on behalf of a “Houseworker, General, Live-In.” In the labor certification, the employer listed a prevailing wage validity period of March 28, 2009 through April 1, 2010. The prevailing wage that was issued provided a validity period of April 2, 2009 to April 1, 2010. The Certifying Officer denied the case because the prevailing wage validity period exceeded the “one year maximum outlined in 20 C.F.R. Section 656.40(c).” The employer appealed the denial and argued that it made a clerical error in entering the prevailing wage validity period on the ETA 9089. In reviewing the case, BALCA noted that “PERM is an exacting process, designed to eliminate back-and-forth between applicants and the government, and to favor administrative efficiency over dialogue in order to better serve the public interest overall.” Since the employer incorrectly completed the labor certification and BALCA reiterated that the PERM program is supposed to highlight administrative efficiency, the denial was upheld. When drafting labor certifications, it is critical that employers correctly list the required information to avoid these types of denials.
Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage.
In a recent scathing editorial/opinion piece, published in the Huffington Post, the use of H-1b visas and outsourcing were linked together. The premise of the piece was that all outsourcing is bad and that H-1b workers at lower wages are used to replace US workers. For once, it would be nice if an elected official or in this case a wannabe would do enough research to at least get some of their facts straight regarding the H-1b visa.
As we advised you in our Aug 2nd post, the DOL suspended issuing PWD’s and to date there has been no official announcement regarding a return to full service. There have been multiple reports of attorneys receiving a scattering of PWD’s last week but, it does nto appear that a full scale return to operations as normal occurred. At HLG, attorney Sherry Neal received 2 but, none of the other attys. received any. (I attribute that to her good living). Obviously, this delay has created a variety of problems for many clients which include ads expiring and having to be placed again, internal postings expiring in the Sch A context, and employees not being able to file to preserve 7th year extensions, among others. We will keep you updated as developments occur.
The DOL recently updated it’s FAQ’s designed to guide employers and others regarding the issuance of prevailing wage determinations.