A new Department of Labor (DOL) rule will increase wages for H-1B, H-1B1, and E-3 cases as well as the PERM labor certification program. The rule was published on October 8, 2020 and is already in effect.
The DOL uses data from the Occupational Employment Statistics (OES) from the Bureau of Labor Statistics (BLS) to determine prevailing wages for a variety of occupations. The prevailing wage is based on the specific occupation and the geographic area of intended employment. The prevailing wage is divided into four (4) wage levels.
Under the new rule, OES prevailing wage minimums will increase significantly at all four (4) wage levels as follows:
| Skill Level | Current Percentile | New Percentile |
| Level I | 17 | 45 |
| Level II | 34 | 62 |
| Level III | 50 | 78 |
| Level IV | 67 | 95 |
The rule will still permit employers to use alternative wage sources instead of DOL prevailing wage data for LCAs and PERM applications. These sources are not subject to the DOL wage percentiles.
LCAs filed on or after October 8 will be subject to the new prevailing wage rates. LCAs filed and pending before October 8 will be subject to the current prevailing wage rates.
PERM prevailing wage determinations issued on or after October 8 will be subject to the new prevailing wage rates. Determinations issued before October 8 will be based on the current prevailing wage rates. Determinations pending on October 8 will be subject to the new prevailing wage rates.
The new DOL rule will be the subject of multiple federal lawsuits. Plaintiffs will seek preliminary injunctions to block the DOL from enforcing the new rule while challenges are litigated in court.
Our law firm is closely analyzing the new DOL rule and monitoring its implementation. If you have any questions, please contact our office.