April 2 -- The Department of Labor (Department) invites interested parties to provide information by June 1, 2021 on the sources of data and methodologies for determining prevailing wage levels covering employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, E-3 nonimmigrant visas.
The information received in response to this RFI will inform and be considered by the Department as it reviews the final rule entitled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, published in the Federal Register on January 14, 2021, which may result in the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels in a manner that more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed.
The Immigration and Nationality Act (INA), as amended, assigns certain responsibilities to the Secretary of Labor (Secretary) relating to wages and working conditions of certain categories of immigrant and nonimmigrant foreign workers. The Secretary issues permanent labor certifications for certain employment-based immigrants and certifies labor condition applications (LCAs) for the temporary employment of foreign workers in specialty occupations under the H-1B, H-1B1, and E-3 visa classifications. A specialty occupation is an occupation that requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.
The Department may issue a permanent labor certification only after a determination that employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. Employers seeking to employ an immigrant foreign worker on a permanent basis must attest that they will pay at least the prevailing wage and obtain a Prevailing Wage Determination (PWD) for the job opportunity from the Department. Similarly, employers seeking to employ a nonimmigrant foreign worker on a temporary basis under the H-1B, H-1B1, or E-3 programs must attest that they will pay the higher of the actual wage paid to employees with similar experience and qualifications or the prevailing wage for the occupational classification in the area of intended employment.
The Department has long relied on BLS's Occupational Employment Statistics (OES) data to establish prevailing wage levels. The OES is a comprehensive, statistically valid survey that is currently used for satisfying the Department's purposes in setting wages in most immigrant and nonimmigrant programs.
On October 8, 2020, the Department's Employment and Training Administration (ETA), published an Interim Final Rule (IFR), 85 FR 63872, revising the methodology the Department uses to determine prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs. Because the Department determined that the existing wage levels were artificially low and provided an opportunity for employers to hire and retain foreign workers at wages well below what their U.S. counterparts earn, the Department revised wage provisions at 20 CFR 655.731 and 656.40 to adjust the existing wage levels. On January 14, 2021, the Department published a final rule entitled Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, with an effective date of March 15, 2021. 86 FR 3608. With this final rule, the Department adopted a number of modifications to the wage methodology established by the IFR.
The Department subsequently issued a notice of proposed rulemaking on March 22, 2021, to further delay the effective date of the final rule by eighteen months or until November 14, 2022, along with corresponding proposed delays to the rule's transition dates. 86 FR 15154. The Department explained that the proposal is intended to provide a sufficient amount of time to thoroughly consider the legal and policy issues raised in the rule, provide time to compute and validate prevailing wage data and take other steps to allow for an orderly implementation, and offer the public, through the issuance of this RFI, an opportunity to provide information on the sources and methods for determining prevailing wage levels, which could be used to inform potential new proposal(s) to amend ETA's regulations governing prevailing wages for PERM, H-1B, H-1B1, and E-3 job opportunities.
Through this RFI, the Department is soliciting public input on the available sources of data and methodologies that can be used in computing different levels of wages based on the OES wage survey, commensurate with experience, education, and level of supervision for a specific occupation and geographic area. Submissions may include, but are not limited to, written narratives that answer the questions presented in this RFI, quantitative or qualitative data analysis, reports or studies, and other estimation techniques and methodologies, whether published or unpublished, relevant to determining wage values or levels within a specific occupational wage distribution and geographic area.
The information received in response to this RFI will inform and be considered by the Department as it reviews the final rule published in the Federal Register on January 14, 2021, 86 FR 3608, which may result in the development of a future notice of proposed rulemaking to revise the computation of prevailing wage levels in a manner that is consistent with the INA and more effectively ensures the employment of certain immigrant and nonimmigrant workers does not adversely affect the wages of U.S. workers similarly employed. Accordingly, the Department invites the public to answer one or more of the following questions in their submissions:
1. What sources of data and methods are available that can be used alone, or in conjunction with other sources and methods, to approximate the wage level within an occupational wage distribution based on the OES wage survey and takes into account education, experience, and level of supervision for U.S. workers similarly employed across industries for specific occupation(s) and geographic area(s)?
2. Besides the OES wage survey, what other sources of data and methods are available that can be used alone, or in conjunction with other sources and methods, to approximate wage levels, by occupation and geographic area, specifically for U.S. workers similarly employed at institutions of higher education, nonprofit entities related to or affiliated with such institutions, nonprofit research organizations and Governmental research organizations?
3. Should the Department continue to set wage levels at the same point within the OES distribution for all occupations and geographic areas or, alternatively, set wage levels at different points within the OES distribution for different groups of occupations and/or geographic areas? If the latter, what sources of data and methods are available that can be used alone, or in conjunction with other sources and methods, to approximate different wage levels for different groups of occupations, taking into account education, experience, and level of supervision for U.S. workers similarly employed across industries and geographic areas?
4. Other than computation of an arithmetic mean or specific percentile within an occupational wage distribution based on the OES wage survey, are there any other statistical approaches or estimation techniques the Department should consider when computing the wage level(s) for occupation(s) and geographic area(s)?
FR notice RFI: https://www.federalregister.gov/documents/2021/04/02/2021-06889/request-for-information-on-data-sources-and-methods-for-determining-prevailing-wage-levels-for-the
ETA Office of Foreign Labor Certification: https://www.dol.gov/agencies/eta/foreign-labor