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Although the Biden Administration has not yet withdrawn this Rule,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

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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