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Prevailing Wages: An Alternative to the New Wages Announced by the Department of Labor

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Recently, the Department of Labor (DOL) announced new wages for the Labor Condition Application (LCA) for the H-1 visa category as well as the Labor Certification process for permanent residence based on employment (the EB-2 and EB-3 categories). The new wages are significantly higher than the supposed “market†wages that DOL just issued this summer so there are significant questions about the reason for the new wage levels as well as how they were determined.

For example, if there is only one four year university in a Metropolitan Statistical Area it is assumed that the “market†for wages at that university would be the actual wage levels paid by that school.  However, we know of one of our clients in this situation which has been assigned wages to positions at this university, which are up to 40% higher than what the school currently pays. It would seem logical that only the employers in the area would set the “market†wages for those positions, but DOL has instead created highly inflated wage levels with seemingly no way to defend them.

Based on questions raised by the situation described above, as well as many more questionable wage increases without any apparent market basis, it will be interesting how this situation is viewed in Federal Court and after the election today.

But many employers cannot wait for Federal Courts to review the wage levels, or a new Administration that will not have the opportunity to change the system until Spring 2021, so what are the options in the meantime?  As with past DOL wage levels, employers always have the option of using “other†or “alternative†sources for wages.  If an employer wishes to use another source for wages other than the DOL, the following criteria must be included: 

  • Name of the published story
  • The publication schedule for the survey including the current date, the date of the previous version of the survey and the date of the next release of the survey
  • When data was collected 
  • A description of the job duties or activities used in the survey
  • The methodology used in the survey, including: 
  • How the universe is defined 
  • How the sample size was determined
  • How the participants were selected including the number of employers surveyed for the occupation in the area and the number of wage value responses 
  • A list of employer participants or an explanation of how the cross industry nature of the survey was maintained 
  • How the presented wage was determined and if it was a mean or median 
  • Any other appropriate methodological information, and  
  • The area covered by the survey

In addition, the other source of wage information must not be more than two years old and must be the last survey conducted by the source.

The following are four examples of “other†sources which may be considered in lieu of the wage levels from DOL:

Although there are fees which must be paid to use this wage information, those fees are substantially less than the tens of thousands of dollars more DOL is claiming must be paid for new H-1 and Labor Certification cases.

Based on the information above, it is clear that the “battle†over the new DOL wage levels is just beginning. And we have options now we can use to avoid the higher DOL wages until we obtain a  permanent change.

David Swaim 
Managing Partner- Dallas, TX
Tidwell, Swaim & Farquhar

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