With the Trump Administration back in power in Washington, D.C., immigration practitioners are once again navigating many sweeping changes to the immigration landscape. One key area that the administration may target is prevailing wages for H-1B specialty occupation workers.
During his first term, President Trump signed the Buy American Hire American (BAHA) Executive Order, which was aimed at protecting U.S. workers by increasing wages in work visa programs and strongly enforcing immigration laws. The administration encouraged workers to report fraud and abuse to the Department of Labor’s (DOL) Wage and Hour Division, while also increasing site visits to ensure compliance.
Another tactic the first Trump administration used to implement its agenda was targeting prevailing wages. Temporary workers in professional (H-1B) and nonprofessional (H-2A and H-2B) visa categories must be paid a minimum wage based on prevailing wages in the area for that occupation. Prevailing wages can be established by commercially available wage surveys, but are most commonly determined using public data collected and published by the Bureau of Labor Statistics’ Occupational Employment Statistics “OES” program. These surveys are used to determine prevailing wages for occupations by specific geographic location. The survey breaks each occupation down into four levels, with level 1 corresponding to entry-level roles, up to level 4, which corresponds to fully “competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification, and application of standard procedures and techniques.”
In late 2020, the first Trump administration tried to raise the minimum wages required for temporary workers. The rule would have made entry level workers be paid higher than 1/3 of all workers, and fully experienced workers paid higher than 90% of all workers, in the location and occupation. The rule would have caused prevailing wages required to be paid to foreign workers to significantly rise. While this final rule was ultimately blocked by three federal courts, it caused significant disruption for U.S. employers and their foreign workers.
It is possible for the current Trump Administration to make another attempt at raising prevailing wages again. There are a few ways that employers can safeguard themselves against such action.
The most effective action would be to look at commercially available alternative wage surveys. While alternative wage surveys are not free, unlike OES wage data, they may be worth looking into, especially if there is a significant gap between the employee’s salary and the OES prevailing wage – as long as there is an available alternative wage survey that would work with the proffered salary. Additionally, if an employer has multiple employees in the same geographic area and in the same or similar positions, using an alternative wage survey could be beneficial, as it could be used for multiple employees, making the cost of the alternative wage survey much lower when utilized for multiple filings.
Alternative wage surveys should be obtained from reputable sources and should conform to the regulations on the use of alternative wage surveys. Qualified immigration counsel can advise on the use of surveys. Specifically, employers want to confirm the following points as set forth in the Department of Labor’s November 2009 Prevailing Wage Determination Policy Guidance:
- The survey must be recent[1]. If the employer submits a published survey, that survey must:
- have been published within 24 months of the date of submission of the prevailing wage request;
- be the most current edition of the survey; and
- be based on data collected within 24 months of the date of the publication of the survey. If the employer submits a survey conducted by the employer, the survey must be based on data collected within 24 months of the date of submission of the prevailing wage request.
- The wage data submitted by the employer must reflect the area of intended employment. Area of intended employment means the area within normal commuting distance of the place (address) of intended employment.
- The job description applicable to wage data submitted by the employer must be adequate to determine that the data represents workers who are similarly employed. Similarly employed means jobs requiring substantially similar levels of skills.
- The wage data must have been collected across industries that employ workers in the occupation.
- The prevailing wage determination should be based on the arithmetic mean (weighted average) of wages for workers who are similarly employed in the area of intended employment.
- The employer must include the methodology used for the survey to show that it is reasonable and consistent with recognized statistical standards and principles in producing a prevailing wage (e.g., contains a representative sample), including its adherence to these standards for the acceptability of employer-provided wage data.
There are some downsides to using an alternative wage survey. Surveys are not always readily available for smaller geographic regions, or for niche occupations. Additionally, USCIS may issue a Request for Evidence (“RFE”) on the petition questioning whether the survey was for the correct occupational code. However, as discussed above, there are many potential upsides to consider using alternative wage surveys. Qualified immigration counsel should be able to navigate any pitfalls and advise on using alternative wage surveys. While prevailing wages have not been targeted yet, immigration policy can shift, and prevailing wage rules are a prime target. Taking proactive steps now – like exploring alternative wage surveys – can help employers avoid scrambling in panic and protect their global talent pipeline.
[1] https://www.dol.gov/sites/dolgov/files/eta/oflc/pdfs/npwhc_guidance_revised_11_2009.pdf
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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