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Terra Dotta

Department of Labor Rule Increases H-1B and PERM Prevailing Wage Minimums

On October 8, 2020, the Department of Labor (DOL) published an interim final rule on how DOL's National Prevailing Wage Center (NPWC) applies its four wage-level system to generate prevailing wage determinations. The new rule will impact prevailing wage determinations in both the H-1B and permanent (PERM) programs for non-Collective Bargaining Agreement (CBA) petitions at UD. While the regulation will take effect immediately, DOL will accept public comments for 30 days.

The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the geographic area of intended employment. The Occupational Employment Statistics (OES) prevailing wage is divided into four wage levels, ranging from entry level to experienced.

Under the new rule, OES prevailing wage minimums will significantly increase at all four levels. For example, under the previous rules, the Level I (entry level) wage minimum is set at the 17th percentile of the average wage for the occupation. As part of the new rule, the entry-level minimum wage will increase to the 45th percentile. The following table illustrates how the interim final rule impacts OES based prevailing wage determinations filed on or after October 8, 2020.

Wage Level

Previous Percentile

New Percentile

Level I 17 45
Level II 34 62
Level III 50 78
Level IV 67 95

DOL states that the rule will only apply to currently pending and future OES-based applications, including:

  • prevailing wage determination pending as of the effective date of the regulation;
  • prevailing wage determinations filed on or after the effective date of the regulation; and
  • LCAs filed on or after the effective date of the regulation where the OES survey data is used and where the employer did not obtain the PWD prior to the effective date of the regulation.

The rule will not affect previously approved NWPC prevailing wage determinations. Additional information on the new rule is available on the NAFSA website.

OISS continues to monitor the situation very closely and will provide updates and guidance to UD international students, scholars and departments as new information becomes available. If you have any questions in the meantime, please do not hesitate to contact OISS at any time.