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 Although the Biden Administration has not yet withdrawn this Rule, the White House announced that Trump era policies are fair game and under review.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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