On October 6 the Department of Labor (DOL) issued guidance changing the wage determination process for H-1B, H-1B1, E-3, and employment-based immigrant petitions. Under the new rule, DOL will differently assess Occupational Employment Statistics (OES) data to calculate the “prevailing” wage. The rule effectively makes sponsorship of these petitions more expensive by raising the minimum qualifying wage that employers must pay.
Within the last week, multiple lawsuits have been filed challenging the rule. The first, an October 16 suit by tech companies, seeks a preliminary and permanent injunction, arguing that the new wage standards conflict with statutory requirements under the Immigration and Nationality Act. Further, plaintiffs charge that DOL released the guidance without the requisite notice and comment period. The rule was announced on October 6 and took effect on October 8; by October 13, DOL was issuing wage determinations based on the revised OES data.
Tech companies also contest DOL’s underlying reasoning. While DOL cited high national unemployment as the basis for the statistical adjustment, government data shows low unemployment for technology positions – a common occupation for the affected highly-skilled workers.
While legal action is pending, the rule will affect newly filed and pending prevailing wage determinations (PWDs) and labor condition applications (LCAs). However, a PWD or LCA that was certified before the interim rule took effect can still be used to file a PERM or non-immigrant petition.