On Thursday, October 8, 2020, The U.S. Department of Labor (DOL) is expected to publish an interim final rule and new prevailing wage figures that will increase the prevailing wage requirements for certain visa categories.
The final rule from the DOL changes the way the agency determines the minimum wage that employers must offer foreign workers. Specifically, it significantly increases the minimum wages that employers must offer to nonimmigrant workers on H-1B, H-1B1 and E-3 status as well as employment-based green card applicants. Upon publication, the rule will go into effect immediately; however, there will be a 30-day comment period.
The DOL uses Occupational Employment Statistics (OES) data from the Bureau of Labor Statistics to determine the average wage paid for a specific occupation in a given geographic area and sets prevailing wage minimums based on this data. The DOL has yet to release the new wage minimums but is expected to do so on Thursday, October 8.
Who does this impact?
- Labor Condition Applications (LCAs): LCAs file on or before October 7, 2020, will be processed using the previous wage data. LCAs filed on or after October 8, 2020, will be subject to the new wage data expected to be published on October 8. LCAs that have already been certified remain valid.
- Prevailing wage determinations: Prevailing wage determinations issued on or before October 7 will be issued using the previous wage data. Determinations issued on October 8 or later will use the new, higher wage data. Prevailing wage determinations that have already been issued will remain valid; the Department of Labor will not revisit or re-adjudicate these wage determinations, and they can continue to be used until their expiration date.
The new rule will impact wage requirements for workers in the following visa categories:
- Nonimmigrant Visa Categories:
- Immigrant Visa Process:
- Prevailing Wage Determinations for PERM applications for the EB-2 and EB-3 processes requiring PERM
What happens next?
Unless a preliminary injunction is issued to suspend implementation of the rule, it will take effect on October 8, but is likely to face future legal challenges.
How are Envoy Global and Global Immigration Associates (GIA) responding?
Envoy and GIA are following this news closely. This is a fluid and developing situation and we encourage all clients to frequently check the Announcements section of the Envoy platform for updates as they become available.
Envoy is pleased to provide you this information, which was prepared in collaboration with Ian Love, who is a Managing Attorney at Global Immigration Associates, P.C. (www.giafirm.com), Envoy’s affiliated law firm.
gContent in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an Envoy-affiliated attorney or another qualified professional.