On October 6, 2020, the U.S. Department of Labor (DOL) updated its regulations for wages paid to certain foreign workers with the named purpose of higher protecting the roles and wages of U.S. workers. The new wages were applicable as of October 7, 2020 at 7:00 pm.
AILA (American Immigration Lawyers Association) is preparing litigation against the DOL regarding this alteration . If you’d wish to be a named plaintiff during this matter, please read through to the top of this alert for information on the way to join as a plaintiff. Both organizations and individuals could also be included as named plaintiffs.
- H-1B
- H-1B1 (Singapore/Chile trade Agreement)
- E-3 (Australia trade Agreement)
- Employment-based positive identification sponsorships supported a PERM application.
The Department believes these changes to the wage structure supported the Occupational Employment Statistics (OES) wage survey better reflect the particular wages earned by U.S. workers similarly employed to foreign workers. The OES is that the online wage survey administered by the Bureau of Labor Statistics and typically utilized in reference to H-1B petitions. during this regard, please note that the prevailing wage levels appear to possess been increased by about 50% in many cases. Under the new wage structure, A level 1 (entry level) engineer in Wayne/Oakland/Macomb county must be paid $92,830/year ($44.63/hour). this is often up from $67,850/year ($32.62/hour). A level 2 engineer working within the same geographic location must now be paid $114,421/year ($55.01/hour), up from $82,555/year ($39.69/hour).
- An Application for Prevailing Wage Determination, Form ETA-9141 (typically filed in reference to PERM sponsorship), pending with the National Prevailing Wage Center (NPWC) as of 08/10/2020.
- An Application for Prevailing Wage Determination, Form ETA-9141, filed with the NPWC on or after 08/10/2020.
- A Labor Condition Application for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, (filed in reference to H-1B, H-1B1 and E-3 petitions) filed on or after 10/8/2020 where the OES survey data is that the prevailing wage source, and where the employer didn’t obtain the prevailing wage determination from the NPWC before the effective date of the regulation.
- Prevailing Wage Determinations (ETA-9141) issued any time before 10/08/2020. Including those issued years ago in reference to a PERM and/or I-140 that has already been approved. This includes EB3 downgrades that are being prepared.
- Existing H-1B, H-1B1 or E-3 wages. So, there’s no impact to the wage levels for workers who have a pending or approved H-1B, H-1B1 or E-3. However, the new wage structure will apply subsequent time the employer files an extension or amendment for the worker.
On October 13, 2020, the NPWC will begin issuing prevailing wage determinations (ETA-9141) using the new OES prevailing wage data. This brief delay in issuing wage determinations is important to finish the specified technical changes to the FLAG system’s internal prevailing wage determination module.
The DOL are going to be accepting public comments on the new rule through 11/9/2020. To submit a comment, attend https://beta.regulations.gov, click on the box for “Strengthening wage protections for the temporary and permanent employment of certain aliens,” then click on the “Comment” button within the upper left.
Join the litigation
AILA is seeking plaintiffs in an action challenging the new interim final rule on prevailing wage levels for H-1B, H-1B1, E-3 and PERM filings. Individuals and organizations curious about potentially joining the litigation as named plaintiffs should complete the shape at this link as soon as possible because the litigation are going to be filed on a really expedited basis.
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If you have any questions or concerns about the information provided above, please don’t hesitate to contact me.
Sincerely,
Luke Bowman
The Law offices of Luke Bowman