November 26, 2020

Volume X, Number 331

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If You Want an H-1, H1B1 or E3 Worker, Or to Sponsor an Applicant for a Green Card it Might Cost You More: New DOL Regulation

With virtually no warning and effective immediately upon publication, as of October 8, 2020, the Department of Labor promulgated a regulation which, in effect, dramatically increases the wage that must be offered by any employer to an H1B, H1B1 and E3 worker and to any applicant for permanent residence based upon the Alien Labor Certification Program.

The Department of Labor relies on the Occupational Employment Statistics (OES) data from the Bureau of Labor Statistics (BLS) to determine the appropriate prevailing wage in a number of occupations.

For each occupation, it determines four wage levels, assigned based upon skill set, and ranging from "entry" to "highly experienced".

The levels are keyed to the wage range distribution for that particular occupation.

Prior to the promulgation of this regulation, Level I through Level IV were keyed to 17%, 34%, 50% and 67% of the wage distribution for the particular occupation. Under the new regulation it is 45%, 62%, 78% and 95%, respectively.

Taking as an example the prevailing wage for “Computer Occupation, All Other”  in San Francisco as calculated a month ago compared to now, you can see how dramatic the difference is.

WAGE SEARCH RESULTS

San Francisco – Oakland - Hayward, CA

Computer Occupation, All Other

Before October 8, 2020 Regulation
After October 8, 2020 Regulation
Level 1 $70,720 Level 1 $103,771
Level 2 $95,555 Level 2 $150,925
Level 3 $120,370 Level 3 $198,099
Level 4 $145,205 Level 4 $245,253

If you want an H-1 worker or to sponsor an applicant for a green card, it is going to cost you a lot more, a hundred thousand dollars more at Level 4.

Prevailing Wage Determinations approved prior to October 8 will be honored, but any application pending now or to be filed now and going forward will be decided in accordance with the new regulation.

There is Hope

It is still permitted to rely on an alternate survey conducted by an independent authoritative source or another legitimate source (20 CFR Sec 655.732(B)(3) (iii) (B) and (C)) if it complies strictly with the regulatory specifications for such surveys in the DOL regulation.

We also anticipate that this interim regulation, will be the subject of litigation.

This is not the time or place to delve deeply into the many limitations, flaws and inaccuracies of the OES data, but suffice it to say that these determinations will often not be commensurate with what the market reflects, and will have a significant negative impact on recruiting and sponsoring foreign nationals that may be legitimately needed. It is, however, the new reality. Employers must once again be prepared to pay more than should be necessary for the talent they need, unless the courts intervene.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 286
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About this Author

David Grunblatt, Proskauer Law Firm, Immigration Attorney
Partner

David Grunblatt is head of the Immigration & Nationality Group in the Labor & Employment Law Department, resident in the Newark office.

973-274-6021
Valarie H McPherson, Proskauer Law Firm, Immigration Attorney
Special Immigration Counsel

Valarie McPherson is a Senior Associate in the Immigration & Nationality Group, with more than a decade of experience. She represents companies from Fortune 500 to small and medium-sized entities in the banking, finance, pharmaceutical, medical, publishing, manufacturing and fashion industries, as well as public and private foundations and individuals in a variety of immigration matters.

973-274-6028
Jennifer Wexler, Proskauer Law Firm, Immigration Attorney
Associate

Jennifer Wexler is an Associate in the Immigration & Nationality Group, who concentrates her practice in representing multinational corporate clients in various industries, such as banking and finance, computer and information technology and transportation. She works with a varied list of multinational banking corporations such as HSBC, Natixis, and Sumitomo Mitsui Banking Corporation. She also has a particular focus in the fashion and retail industries, advising and representing both international and domestic fashion houses in all their related immigration matters.

212-969-3318
Erica Loomba, Proskauer Law Firm, Immigration Attorney
Associate

Erica Loomba is a senior associate in the Immigration & Nationality Group.

Erica has been practicing immigration law for over 15 years and her practice areas include: obtaining employment-based immigrant and non-immigrant visas for professionals in the pharmaceutical, biotechnological, financial, retail, scientific, educational and computer industries; providing advice on immigration and employment governmental regulations, policy and practice compliance; and assisting with consular processing. Erica helps actively manage the practice group'...

973-274-3295
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