We don’t often think about the Department of Labor as being a part of the immigration bureaucracy, but it takes just one sweeping change to remind us of the massive impact the agency has on legal immigration.
On October 8, 2020, with no notice given, the Department of Labor issued an Interim Final Rule, effective immediately, that overhauled the manner in which the minimum wages that must be paid to foreign workers, known as prevailing wages, were calculated. The methodology used is shockingly flawed, and the implementation plainly illegal, but for now new wages levels are in effect that undercut, if not eliminate, the ability of U.S. companies to employ foreign labor.
To understand the impact of these rules, one has to understand the process for applying for a foreign worker. Broadly speaking, in both the nonimmigrant context and the immigrant context, one of the first steps required for most types of visas involves requesting that the Department of Labor certify a “prevailing wage” level, or a minimum wage that can be paid to the worker, based on experience, education, supervisory duties, etc. These wages range from level I, an entry level position, to level IV, a highly competent individual, and take into account wage data across hundreds of occupations.
Previously, for an entry level position, an individual would have to be paid, at minimum, at the 17th percentile of the wages of all people in that occupation in that metropolitan area. That minimum wage has now been increased to approximately the 45th percentile for an entry level position. Essentially, for someone just out of college with no experience who is just starting their career, they would have to be paid nearly the median wage for all similarly situated workers. When digging into the methodology some truly absurd results are shown – including new wage increases of 100-200% for common occupations.
These absurd numbers are perhaps a result of the Department of Labor deciding against asking for the necessary data from the Bureau of Labor Statistics, or perhaps it was because the Department skipped review from the Office of Management and Budget, or maybe it was because the Office of Information and Regulatory Affairs waived review, or maybe it was because, contrary to law, the new rule was implemented without any opportunity for input from the public.
Regardless of the reason, to challenge this egregious rule, in collaboration with the American Immigration Lawyers Association, Kuck Baxter Immigration, and Siskind Susser, P.C., Joseph & Hall has filed a lawsuit and a motion to enjoin (or effectively halt the implementation) of this rule. The lawsuit is still in its early stages, but with the procedural flaws associated with the promulgation of this rule, along with the incredibly flawed methodology, we expect the rule will not survive long.
In the meantime, though, those applying for foreign workers are faced with a massive new obstacle. If you are interested in sponsoring a foreign worker, either temporarily or permanently, please contact our office.
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