Employers that want to hire H-1B, H-1B1 or E-3 visa holders to fill their open positions must pay them at least the prevailing wage as set by the U.S. Department of Labor (DOL). Additionally, employers that want to sponsor their employees for permanent resident status through the PERM Labor Certification Application process (PERM) must also pay these employees at least the prevailing wage as set by the DOL.
Trump Administration’s Proposed Rule
A rule announced by the former Trump administration in January 2021 and published by the DOL would likely have discouraged employers from sponsoring foreign nationals for some temporary or permanent employment positions because it would have greatly increased the prevailing wages. Under the former administration’s proposed rule, the DOL would have changed how to compute Level I through Level IV wage rates when using Occupational Employment Statistics (OES) wage data to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify an LCA that relies on OES wage data. This would have resulted in higher NPWC prevailing wage determinations in each OES-based wage level increasing the prevailing wages as of July 2021. However, courts found that the rule violated the rulemaking procedures because it had been published without providing sufficient opportunity for public comment.
The Biden administration delayed the proposed rule. Three federal courts also enjoined or set aside the rule because of its procedural problems; specifically, because the DOL did not provide the public with proper notice and a meaningful opportunity to comment and failed to disclose relevant data and analysis on the new wage data. In December 2021, the DOL issued a final rule about prevailing wages which maintains them at their current levels instead of including the increases proposed by the former administration.
The fact that the final rule maintains the prevailing wages at their current wage levels rather than greatly increasing them is good news for foreign nationals looking to live and work in the United States and the employers who sponsor them. This December 2021 final rule by DOL enables U.S. employers to have more certainty going forward, as prevailing wages should stay relatively consistent. If the prevailing wages had substantially increased, employers would have been less likely to hire H-1B, H-1B1 or E-3 workers to fill open positions or to file PERM applications for foreign national employees.