US Prevailing Wages For Visas In Limbo
The Final Rule regarding Weighting of Prevailing Wages (PW) for
immigrant work visas was announced in the Federal Register on
January 14, 2021 and affects PW Requests starting on July 1, 2021.
Although the Biden Administration has not yet withdrawn this Rule,
the White House announced that Trump era policies are fair game and
under review.
The Final Rule is the latest attempt to make sense out of an
entangled methodology based on data. The National Wage Center (NWC)
in Washington has the difficult task of assigning one of four
surveyed pay levels to each job opportunity offered to foreign
workers.
Employers must adhere to Department of Labor (DOL) standards
before visas can be approved by filing applications for labor
certification process (known as PERM.1) PERM is a web of regulations that
permits foreign workers to obtain green cards to perform skilled
labor in specific labor markets where American employers cannot
find domestic workers who are qualified, willing, interested, or
able. A recruitment process is indicated during which special
attention is given to protect the wages of American workers from
unfair influence by foreign workers who may be willing to work for
less.
Worker qualifications are categorized as entry level, qualified,
experienced, and fully competent, and, in turn, are based on data
provided by the Office of Employment Occupational Statistics (OES)
derived from a labyrinth of databases and tables maintained by the
Bureau of Labor Statistics (BLS).
The NWC reviews information about job offers proposed by
employers on Form 9141. Job descriptions and requirements such as
education, experience, training, special skills, licensing, and
many other factors may be considered, like cognitive ability,
physical stamina, and communication skills.
The practical and theoretical challenges of wage analyses
– collection of reliable data through surveys and
distribution of that data by formulas into four coherent wage
levels — have given rise to constant disagreements among laymen
and experts alike who seek accurate and reliable
determinations.
The most recent controversy is the proposal of a new method for
data weighing from one-wage survey results into four-level wage
levels. An interim final rule published on October 8, 2020,
states:
“…DOL is amending its regulations…to incorporate
changes to the computation of wage levels under the existing
four-tier wage structure to better reflect the actual
wages…”2
For a better theoretical understanding of the logic– or
lack thereof – used for weighting classifications, readers
may turn to critical analyses by David J. Bier of the Cato
Institute, who tackles the current and proposed weighting systems
in several on-line articles.3
An attempt to create tools for DOL officers to use for wage
determinations at the DOL NWC are found in a memo,4 which may be the
single most important PERM tool for stakeholders other than the
PERM Rule itself. The Memo is unchanged since 2009.5
While experts debate the proper formula for obtaining reliable
statistical data and proper weighting for job levels, prevailing
wage determinations remain in a state of uncertainty and employers
should proceed with great caution.
Footnotes
1.
Program Electronic Review Management
2.
https://www.federalregister.gov/documents/2020/10/08/2020-22132/strengthening-wage-protections-for-the-temporary-and-permanent-employment-of-certain-aliens-in-the
3. See,
for example:
https://www.cato.org/blog/dol-misrepresents-wage-data-justify-h-1b-prevailing-wage-increase
4.
Employment and Training Administration Prevailing Wage
Determination Policy Guidance Nonagricultural immigration programs
Revised November 2009
5.https://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf
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