The new Department of Labor (DOL) interim final rule on prevailing wages drastically increases the four DOL wage tiers of the Occupational Employment Statistics (OES) wage survey for H-1B, H-1B1, and E-3 temporary work visas, as well as permanent labor certification (PERM) applications. DOL determines prevailing wages under four defined levels: Level 1 (entry level); Level 2 (qualified); Level 3 (experienced); and Level 4 (fully competent). Employers may wish to consider using an alternative private wage survey instead of the new OES wages to meet wage requirements. Below are points for H-1B/E-3 employers to consider:
- Under the DOL Appropriations Act of 2016, the agency is required to accept “statistically supported” private surveys “even where OES survey data are available.” A private wage survey must be conducted by an independent, authoritative source or other legitimate source of wage information. This may include either a government survey not conducted or issued by DOL or nongovernment surveys conducted by private individuals or organizations.
- The data must have been collected within 24 months from a representative sample of workers in the occupation across industries, where applicable. If a published survey, the survey must have been published within 24 months and must reflect the area of intended employment.
- The wage determination must be based on an arithmetic mean (weighted average), and the survey must identify a statistically valid methodology that was used to collect the data. If the mean is not available, the median can be used.
- The survey must be across industries that employ workers in the occupation, and the employer job description must adequately match the survey job description.
- No data for the survey should be collected by the employer or employer’s agent, representative, or attorney. The employer is ultimately responsible for ensuring that the survey meets all required methodological standards.
- Only one survey can be submitted at a time for a given employer.
- An employer may not submit a private survey if there is an applicable collective bargaining agreement.
- DOL will not accept survey wage requests to amend pending applications. Employers must submit the survey with the initial submission of the application for a prevailing wage determination (Form ETA-9141). The agency recommends using the Foreign Labor Application Gateway (FLAG) online system to submit applications.
- One difference between using a private survey versus the DOL’s prevailing wage information is that by obtaining a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center, H-1B, H-1B1, and E-3 employers are given “safe-harbor status,” which DOL says means that “if the employer’s wage compliance is investigated for any reason, the Wage and Hour Division of the Department of Labor will not challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct geographic area, occupation, and skill level).”
Contact your WR attorney for advice in specific situations.
- Prevailing Wages (PERM, H-2B, H-1B, H-1B1 and E-3), DOL, https://www.dol.gov/agencies/eta/foreign-labor/wages/prevailing-wage
- Foreign Labor Certification Data Center, https://www.flcdatacenter.com/
- Foreign Labor Application Gateway (FLAG), https://secure.login.gov/?request_id=94414ea0-069e-4b79-84a4-2efd1f1960fa
- Prevailing Wage Policy Q’s & A’s, Employment and Training Administration,, https://wdr.doleta.gov/directives/attach/GAL1-00AttachA.pdf
- Prevailing Wage Determination Policy Guidance, Employment and Training Administration, https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf