U.S. Department of Labor (DOL) has published an Interim Final Rule (IFR) in Federal Register governing prevailing wage methodology for several foreign worker programs, namely Permanent Employment Certification (PERM), H-1B, H-1B1, and E-3 visa program. DOL has published the new regulations (effective from Oct 8th, 2020). The Department will be accepting public comments on the IFR for 30 days from the date of publication in the Federal Register.
Beginning from October 13, 2020, National Prevailing Wage Center (NPWC) will begin issuing prevailing wage determinations using the revised OES prevailing wage data computed for the Interim Final Rule (earlier DOL had said Oct 13th as the start date of this change and now they reversed the clock to Oct 8th itself). OFLC will continue to issue non-Occupational Employment Statistics (OES) based prevailing wages (e.g. employer-provided surveys or collective bargaining agreements) without delay.
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
- A 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.
- 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/ (Online Wage Library of Foreign Labor Certification Data Center);
- 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.
Changes in the Prevailing Wage Rate on OES survey data:
- Level I Wage:
- Level I prevailing wage will be adjusted from the 17th percentile to the 45th percentile. [In simple term, this means the new prevailing wage Level I rate will essentially be even littler higher rate than previous (July 2020) Level II wage rate]
- Level II Wage:
- Level II prevailing wage at approximately the 62nd percentile from current computation, which places Level II at approximately the 34th percentile.
- Level III Wage:
- Level III prevailing wage at approximately the the 78th percentile, as compared to the current computation, which places Level III at approximately the 50th percentile.
- Level IV Wage:
- Level IV prevailing wage will be adjusted to the 95th percentile from the current 67th percentile.
Last updated Oct 8, 2020, legal alerts from us are forthcoming. If you have any questions, our attorneys are here to answer your questions! We can be reached by phone at 888-820-4430 or by email at email@example.com. Also sign-up for our next conference call or webinar on this topic.