New DOL Rule Makes Significant Increases to H-1B and PERM Wage Minimums
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- The DOL regulation will rebuild the prevailing wage system for the H-1B, E-3, H-1B1, and PERM programs.
- Entry-level wages for H-1B and PERM cases. For instance will increase to the 45th percentile of wages for the occupation and geographic area, from the 17th percentile – simply under the current wage minimum for Level III.
- The regulation will issue on Thursday and will take effect directly upon publication. However, it is required to be challenged in court.
The issue | DOL Regulation
DOL guideline will lift wages for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program. The DOL regulation will be issued on 8th October 2020 and will take effect immediately. However, DOL will accept public comments for 30 days. It is being given as a companion to a new Department of Homeland Security regulation. That will tighten H-1B eligibility standards and place new constraints on the offsite placement of H-1B workers. The two rules have been needs in the Trump Administration.
A Closer Look
The Department of Labor utilizes OES information from the BLS to decide prevailing wages in a wide collection of occupations. The prevailing wage rate is characterized as the average wage paid to comparably employed workers in a specific occupation in the geographic location of proposed employment. Also, the OES prevailing wage is partitioned into four levels or pay levels, representing the scope of skills from entry-level to experienced.
Under the new guideline, OES prevailing wage minimums will increase fundamentally for foreign workers at all four levels of skill and experience. For instance, under current guidelines, the Skill Level I (entry-level) wage minimum is set at the 17th percentile of the average compensation for the occupation. At the point when the new guideline takes effect, the entry-level minimum will increase to the 45th percentile – just under what is today the minimum salary for Skill Level III.
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Despite these wages increases, the guideline will allow employers to continue utilizing alternative pay sources. Rather than DOL prevailing wage data for LCAs and PERM applications; these sources are not subject to the DOL wage percentiles.
DOL Prevailing Wage Levels: Current and New
| Skill Level | Current Percentile | New Percentile |
| Level I | 17 | 45 |
| Level II | 34 | 62 |
| Level III | 50 | 78 |
| Level IV | 67 | 95 |
Implementation of the New Rule
The DOL wage regulation will take effect as follows:
- LCAs filed on or after October 8 will be subject to the new and higher wage minimums. LCAs filed and pending before 8th October will benefit from the current prevailing wage structure.
- PERM prevailing wage determinations published on or after October 8 will be based upon the new wage structure. Determinations gave before October 8 will found on the current prevailing wage structure. Prevailing wage determination requests pending on October 8 will be subject to the new regulation.
However, the rule is probably going to be the subject of federal lawsuits. DOL made the rare step of giving the guideline with quick impact, no notification or opportunity for public comment, and without an economic impact analysis. All of which makes the rule vulnerable to challenge. Plaintiffs in any case are probably going to look for preliminary injunctions to block DOL from enforcing the rule while challenges are litigated in court.
