October 8, 2020
On October 6, 2020, in a document titled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” the Department of Labor (the Department) announced its plans to amend the Employment and Training Administration (ETA) regulations governing the prevailing wages for H-1B, H-1B1 and E3 visas, specifically the permanent labor certifications and Labor Condition Applications (LCAs). The effective date of these changes is October 8, 2020!
|Wage Level||Prevailing Wage Before October 8, 2020||Prevailing Wage On or after October 8, 2020|
WHO is affected?
The rule applies to applications filed on or after the effective date of October 8, 2020. The language specifically used by the Department is as follows:
- Prevailing wage determinations pending with the National Prevailing Wage Center (NPWC) as of the effective date of the regulations;
- Applications for prevailing wage determinations filed with the NPWC on or after the effective date of the regulation;
- LCAs filed with the Department on or after the effective date where the OES survey data is the prevailing wage source; and
- Where the employer did not obtain the PWD from the National Prevailing Wage Center prior to the effective date of the regulation.
WHO is NOT affected?
The regulations do not apply to any previously approved prevailing wage determinations, permanent labor certification applications or LCA’s either through reopening or through issuing supplemental prevailing wage determinations or through notices of suspension, invalidation or revocation.
These changes are a result of an effort on part of the Department “to preserve jobs for American workers” amid record high unemployment rates during the COVID-19 pandemic. The Department also cites outdated wage levels and the BLS OES Survey data that the Department uses to calculate prevailing wages as not specifically designed for foreign labor certification programs as its basis for the need of an update.
Although the new rules are effective immediately, the Department has announced it is accepting comments until November 9, 2020. These updated rules will undoubtedly face challenges in federal court and an injunction to block its enforcement is imminent.