Blog : Immigration Law Update

On July 28, 2021, USCIS announced that they have selected additional cases for this year’s H-1B lottery.  Employers and attorneys began to receive notifications of selection today, July 29, 2021. 

If your company filed any H-1B registrations this year that have not yet been selected, you will be able to check for updates on each case in the myUSCIS portal.

• Cases that indicate “Selected,” and were not already selected in March, have been selected in the additional round and the next step will be to file a petition between August 2, 2021 and November 3, 2021. 
• Cases that indicate “Submitted” will be held “in reserve” through September 30.  USCIS will not provide final confirmation of non-selection until after September 30. 

In June 2021, USCIS announced that they received 308,613 registrations for the 85,000 available slots, of which it selected 87,500; this additional round of selections was conducted because USCIS did not receive enough petitions from its initial round of selections in order to meet the cap of 85,000.  We do not know how many additional registrations were selected in this additional round.    

If USCIS does not receive enough petitions to meet the annual cap, it may select additional cases from the reserve.  We do not know if there will be any additional rounds of selections in the coming months. 

Our office will reach out to candidates regarding the status of their cases.  We will begin work on the petitions for those selected in the lottery over the course of the next week. 

India Travel Ban

• U.S. citizens and nationals;
• U.S. lawful permanent residents (“green card holders”);
• Spouses of U.S. citizens and lawful permanent residents;
• A foreign national who is the parent or legal guardian of an unmarried U.S. citizen or lawful permanent resident under the age of 21;
• A foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided they are both under 21;
• A foreign national who is the child, foster child or ward of a U.S. citizen or lawful permanent resident, or who is a prospective adoptee seeking to enter the United States on an IR-4 or IH-4 visa;
• A foreign national traveling at the invitation of the U.S. government for a purpose related to containment or mitigation of the COVID-19 virus;
• A foreign air or sea crewmember;
• Certain A, C, E-1 (TECRO or TECO employees), G, and NATO nonimmigrants or whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement;
• A foreign national whose entry would further important U.S. law enforcement objectives;
• A foreign national whose entry would be in the national interest; and
• Members of the U.S. armed forces and their spouses and children.

The U.S. Embassy in India issued a FAQ on the travel ban and how to apply for a National Interest Exception to travel to the U.S.

The Department of Status (DOS) has published a list of individuals who are eligible to seek a National Interest Exception. This list includes the following. For the complete list, please visit the DOS website.

• Fiancé(e)s
• Students and certain academics covered by exchange visitor programs.
• Travelers who are seeking to provide vital support for critical infrastructure sectors
• Derivative family members accompanying a noncitizen who is exempt from or otherwise not subject to the Proclamation and who is engaging in certain types of long-term employment, studies, or research of four weeks or longer.
• Travelers whose purpose for entry is related to humanitarian travel, public health response, and national security or otherwise in the national interest of U.S.

CDC’s negative COVID test requirement remains in effect for all persons arriving in the U.S. including US citizens and lawful permanent residents.

MT Perspective:

MT’s immigration team is available to discuss options for travelers who hold a valid U.S. visa but who are subject to the travel ban. Options may include quarantining in a country for 14 days that is not on the U.S.’ banned country list and then travel to the U.S.

U.S. consular operations in India have been reduced to emergency services. All routine visa appointments and services, both in-person and interview waiver, at the U.S. Embassy New Delhi, and the consulates in Chennai, Hyderabad, Kolkata, and Mumbai are cancelled until further notice.

Those seeking a National Interest Exception may not be able to secure an appointment. Consular officers have wide discretion on determining requests for a National Interest Exception.

MT is closely monitoring the COVID-19 travel ban and restrictions and will continue to provide updates.

Biometrics Requirement Suspended for Certain I-539 (H-4, L-2, and E-1/2/3D)

On May 3, 2021, USCIS announced that it will suspend the biometrics requirements for certain I-539 applicants for a two-year period beginning on May 17, 2021. The biometrics suspension will apply to the H-4, L-2, and E-1, E-2, and E-3 categories of Form I-539 applications if they are 1) pending on May 17, 2021, and have not yet received a biometric services appointment notice, and 2) are new applications received by USCIS from May 17, 2021, through May 23, 2022.

MT Perspective:

This suspension is welcome news and is intended to help reduce the extraordinary backlogs for Employment Authorization Document applications by derivative spouses in H-4, L-2, and E-1/2/3D status (spouses of H-1B, L-1, and E-1/2/3 status).

Those who have received a biometrics appointment notices should attend their appointments. USCIS has not yet provided a detailed guidance on how it will implement the suspension. MT will continue to monitor the situation and provide additional updates.

On March 30, USCIS announced that they have completed the selection process for this year’s H-1B lottery.

If your company filed any H-1B registrations this year, you will be able to view the status of each case in the myUSCIS portal.

• Cases that indicate “Selected” have been selected and the next step will be to file a petition between April 1 and June 30. 
• Cases that indicate “Submitted” will be held “in reserve” through September 30.  USCIS will not provide final confirmation of non-selection until after September 30. 

If USCIS does not receive enough petitions to meet the annual cap, it may select additional cases from the reserve.  We do not know if there will be any additional rounds of selections in the coming months.  Last year, USCIS conducted an additional round of selections in August with no prior notice. 

Our office has reached out to candidates regarding the status of their cases.  We will begin work on the petitions for those selected in the lottery over the course of the next week.  We will also be in touch regarding any candidates who were not selected, but are not able to extend their current work authorization.

DHS Public Charge Rule No Longer in Effect

• On March 9, 2021, DHS announced that it will no longer defend its 2019 public charge rule in pending lawsuits. On March 11, 2021, USCIS provided an advance copy of a final rule removing the 2019 public charge rule and restoring the regulatory text to appear as it did prior to the issuance of the August 2019 public charge rule.

• Form I-944 Declaration of Self-Sufficiency and related supporting documents are no longer required for adjustment of status applications.

• Nonimmigrant status applicants are no longer required to answer questions about their receipt of public benefits on Forms I-129 and I-539.

• DHS’ 1999 field guidance on public charge admissibility is in effect in lieu of the August 2019 public charge rule.

MT Perspective:

The public charge policy has been restored to the long standing policy that went into effect in 1999.  Form I-944, which was introduced during the Trump Administration, placed a heavy burden on applicants, forcing them to disclose detailed financial and personal information and to produce voluminous documents.

Under the 1999 guidance, “public charge” grounds of inadmissibility applies to foreign nationals who have become or are likely to become primarily dependent on the U.S. government by receiving cash assistance for income maintenance or by institutionalization for long-term care at the government’s expense. In the context of nonimmigrant visa (e.g. H-1B, L-1, E-3, TN, H-4, L-2, TD), the public charge inquiry does not apply.

Delayed: Trump-era DOL Rule Increasing Prevailing Wages

On February 1, 2021, DOL published a notice announcing a delayed effective date of the Trump Administration’s January 2021 rule entitled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”.

On March 12, 2021, DOL published a final rule to delay the effective date of the Trump era rule published on January 14, 2021 which will have changed the four-tier wage-level system and dramatically increased prevailing wages for Labor Condition Applications for H-1B/E-3/H-1B1 filings and PERM Labor Certifications.  This rule was scheduled to take effect on March 15, 2021. The effective date has been delayed till May 14, 2021.

MT Perspective:

It is possible for the Biden Administration to delay the effective date further or issue a final rule to rescind the January 2021 rule. If it were to be implemented, it is likely to be challenged in federal court. 

E-3 PETITIONS NOW ELIGIBLE FOR PREMIUM PROCESSING

Snapshot:

• What is happening?

USCIS’ premium processing service is now available for E-3 Petitions (Form I-129) for extension or change of status.

• Who does it impact?

E-3 Petitions filed with a USCIS Service Center in the U.S. including those requesting extension of their current E-3 status or a change to E-3 status, within the U.S.

1. E-3 classification applies to Australian nationals coming to the U.S. to work in a specialty occupation, who: 1) have a legitimate U.S. job offer, 2) will fill a position that qualifies as a specialty occupation, and 3) are qualified for the specialty occupation job (possess the necessary academic or other requisite credentials) 

• Where are E-3 applicants NOT impacted?

Eligible Australian nationals outside of the U.S. seeking to obtain an E-3 visa prior to entering or reentering the U.S. These applicants apply directly with a U.S. Consulate or Embassy abroad. Premium processing only applies to cases filed with a USCIS Service Center inside the United States.

More on this:

On February 24th, U.S. Citizenship and Immigration Services (USCIS) announced that premium processing is now available for E-3 petitions, effective immediately. This is an expansion of the employment-based case types that are eligible to request premium processing.

USCIS Premium Processing Service is an optional expedite service whereby eligible petitioners may pay an additional government fee ($2,500) for a reduced adjudication timeline of 15 days for certain eligible case types.


H-1B CAP FY 2022
PREPARING FOR THIS YEAR’S H-1B LOTTERY
Timing:

• For this year’s H-1B lottery, the electronic registration period for participation in the lottery will run from March 9, 2021 to March 25, 2021
• USCIS will notify employers of selection by March 31, 2021, and
• The corresponding H-1B petition filing window for selected registrants will begin on April 1, 2021.
• The H-1B Electronic Registration Process will procced as it did last year.

Upcoming MT Webinar:

• On Friday, February 26th at 11:00AM PST, MT attorneys will be hosting a complementary webinar “How to Prepare for the H-1B Lottery Registration,” to explain the process and provide a comprehensive overview of the H-1B registration system, guidance for employer action items, expectations, workflow, and anticipated timeline.

Please register to attend (Webinar Registration)

The webinar will be recorded, and the presentation materials will be made available for clients.

THE LATEST ON COVID-RELATED TRAVEL RESTRICTIONS
Overview of Current Conditions:

Non-essential international travel is not recommended during the pandemic. Conditions are changing fast, frequently, and abruptly, particularly so in recent weeks. There are numerous travel and visa restrictions globally and many countries remain on complete lockdown. Staffing at U.S. consular posts is limited and routine visa services have been suspended and reinstated inconsistently – each post decides whether and when to resume routine visa processing, what type of visa processing to prioritize, and how to submit emergency appointment requests and applications to qualify for a National Interest Exception to the COVID-19 related visa ban.

U.S. COVID-related travel restrictions still in effect include:

• Travel from certain countries within 14 days:

1. Several COVID-related Presidential Proclamations barring U.S. entry of noncitizens who have been to any of the following countries within 14 days of seeking admission to the U.S.: China, Iran, Brazil, the UK, Ireland, the 26 European countries comprising the Schengen Area, and South Africa (unless traveler meets certain national interest exceptions or exemptions), remain in effect.
2. Timing: travel bans will be reviewed at least every 30 days and will remain in place until terminated by the President.    

• US-Canada & US-Mexico Border Closures:

The Department of Homeland Security restrictions on non-essential travel into the U.S. via land border from Mexico and Canada remain in effect as of February 23, 2021:

• Essential travel includes individuals traveling to the U.S. for work, school, medical treatment, or business*, and any travel by US citizens and US lawful permanent residents

*Foreign nationals traveling for one of these purposes should be prepared at the border to document, and answer detailed questions about, their intended purpose (for example, if traveling for work, proof of planned business or employment activities in the U.S.)

• By contrast, travel for recreation or tourism is considered “non-essential” and is not permitted at land borders
• These particular restrictions do NOT apply to air travel and some sea travel
• Increased CBP scrutiny, additional and detailed questioning at the border, and increased risk of rejection/non-admittance is expected to continue during this time.
• Timing: restrictions are scheduled to remain in effect until at least March 21, 2021 unless otherwise rescinded by the Department of Homeland Security. 

• Nonimmigrant Visa Ban:

Proclamation suspending issuance of new H-1B, L-1, and J-1 visa stamps for certain noncitizens (with exemptions such as if the petitioning employer is a member of the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Retail Federation, or TechNet)

• COVID Test Results:

1. As of January 26, 2021, all air passengers arriving in the U.S., regardless of immigration status, are required to test negative for the coronavirus within 72 hours of travel departure.

MT Perspective & Considerations:

• MT urges clients to contact their immigration legal team and consult with an attorney prior to planning any international travel for the foreseeable future and throughout the pandemic.
• While situations remain fluid, authorities around the world are still broadly recommending against non-essential travel.

Related Resources:

• For the most up-to-date travel warnings and information on travel risks, refer to the Dept. of States’ travel advisories
• For updated country-specific travel restrictions and information, refer to the Dept. of States’ COVID-19 specific information page
• And for updates on coronavirus-related travel restrictions, immigration developments, and MT’s perspective, please visit our COVID-19 info page.

 BIDEN TRANSITION &
IMMIGRATION EXECUTIVE ACTIONS 
President Biden signed a total of 32 Executive Orders during his first 30 days in office, several aimed at course-correcting and re-centering the tone of U.S. immigration policy and priorities.  

The Administration describes these executive actions as “centered on the basic premise that America is safer, stronger, and more prosperous with a fair, orderly and humane immigration system that welcomes immigrants, keeps families together, and allows people—both newly arrived immigrants and people who have lived here for generations—to more fully contribute to our country” per a related White House Fact Sheet.

Executive Orders – Snapshot:

• Executive Order 14005 revokes the 2017 “Buy America, Hire America” Order that was a foundational pillar of the Trump administration’s approach to legal immigration and a major impetus for increased scrutiny, RFE, and denial rates for employer-sponsored visa petitions since its signing in 2017.

• Executive Order 14012 directs a comprehensive review of agency rules, policies, and guidance and formulation of a subsequent plan within 90 days. This seeks in large part to address the voluminous and layered policy changes – of the over 1,000 policy changes made by the Trump administration – that impact legal immigration. The Order also creates a task force on new American Citizens; seeks to increase federal, state, and local collaboration on immigration; and orders immediate review of agency actions on “public charge” inadmissibility, which allows immigration officers to deny green cards to applicants found likely to need public assistance based on past use of public benefits and other factors.

• Executive Order 14011 creates an interagency task force to reunify parents and children separated under the Trump administration’s “zero tolerance” policy, and sets a June 2, 2021 deadline for an initial report of findings and recommendations.

• Executive Order 14010 requires development of a comprehensive strategy to address the root causes of migration throughout North and Central America, a regional framework to facilitate intergovernmental collaboration, and measures to improve and restore protections for asylum seekers.

In other transition news:

• New Leadership at DHS and DOS

Recent weeks have also seen the swearing in of key Cabinet-level officials at the helm of immigration governance:

• Secretary of Homeland Security, Alejandro Mayorkas is the first immigrant to lead the Department of Homeland Security (DHS), and also served as Director of USCIS then Deputy Secretary of Homeland Security during the Obama administration.
• Secretary of State, Antony Blinken will lead the State Department, where he served most recently as the Deputy Secretary of State under President Obama).

FIRST IMMIGRATION BILL OF THE BIDEN ERA
NEW LEGISLATION INTRODUCED

The US Citizenship Act of 2021 (HR 1177) embodying President Biden’s legislative proposals, was introduced into the House on February 18th with an identical companion bill released in the Senate on February 22nd. The legislation aims “to provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.” Congress has not passed a major immigration bill since 1986.

Snapshot of select changes for employment-based immigration:

• Adjustment of Status (AOS/ “green card”) numbers and priority date backlog:

1. Increase employment-based green card availability raising numbers from 140,000 to 170,000 annually and recaptures unused numbers from past years since 1992;
2. Allow individuals with approved I-140 petitions who have been waiting for more than 10 years to adjust, to apply for AOS;
3. Eliminate per-country numerical caps on green cards in the future;
4. Exempt U.S. doctoral STEM graduates from the numerical caps;
5. Give the Department of Homeland Security (DHS) vague authority to temporarily limit adjustment and entry of EB-2 and EB-3 immigrants based on macroeconomic conditions such as increased unemployment.

• Nonimmigrant (temporary) visas:

1. Codify EAD work authorization for H-4 spouses and children;
2. Exempt F-1 students from dual intent restrictions;
3. Enable F-1, L-1, and O-1 visa holders a route to a green card similar to that available to H-1B holders (including one year extensions of work authorization for these individuals if an I-140 or PERM has been pending for more than one year)
4. Authorize DHS and DOL to prioritize the distribution of H-1B numbers based on salary. This would essentially codify the controversial H-1B wage-based selection process rule introduced by the Trump Administration (which was scheduled to take effect March 9th but postponed, pending further review, until at least December 31, 2021 following a directive from President Biden).

• Other provisions for immigration more broadly:

1. Introduces an eight-year pathway to citizenship for 11 million undocumented immigrants.
2. Would change the term “alien” to “noncitizen” in the country’s legal code, the Immigration and Nationality Act

Now what?

• Any significant bipartisan support for the bill is unlikely, not to mention the 60 vote threshold required to pass. Although odds for the bill progressing in its entirety are bleak, this is a critical early step moving the ball forward for the new Administration’s ambitious immigration agenda and defining the parameters that will inform the coming debate.
• As a more likely and typical route historically, congress may prioritize and move certain pieces of the bill forward in the near term, while in parallel pushing for more comprehensive action.

MT continues to actively advocate for immigration reform through direct and indirect involvement in civic affairs at the local, state, and federal levels; and we will continue to keep clients informed of major developments in regulatory, legislative, and policy changes impacting immigration.


USCIS E-VERIFY RECORD DISPOSAL
USCIS announced that, on May 14, 2021, it will dispose of E-Verify records that are more than 10 years old, including records dated on or before December 31, 2010.

E-Verify employers have until May 14, 2021, to download case information if they wish to retain information about these E-Verify cases.

How to Prepare for the H-1B Lottery Registration – February 26, 2021, 11 AM US Pacific Time

Please join us to learn more about the H-1B registration system and what you can do to prepare. 

MT attorneys will provide a comprehensive overview of the H-1B registration system, which was newly introduced last year, and guidance on what employers are expected to do as well as the workflow and anticipated timeline.

For this year’s H-1B lottery registrations, the electronic registration period for participation in the lottery is March 9 through March 25, 2021. USCIS will notify employers of selection by March 31, 2021, and the H-1B petition filing window for selected registrants begins on April 1, 2021. 

The webinar will be recorded, and the presentation materials will be made available for clients. When: Feb 26, 2021 11:00 AM Pacific Time (US and Canada)Please register in advance for this webinar:https://us02web.zoom.us/webinar/register/WN_eugp3_LtS76aPw43d8sTdw

After registering, you will receive a confirmation email containing information about joining the webinar.

The material contained herein is a service to our clients and friends provided for informational purpose only and not intended as advertisement, solicitation or legal advice.

Delayed: Effective Date of New Wage-Based H-1B Selection Final Rule

• On Feb 8^th, the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS), published a rule that will delay the effective date of the new Wage-Based H-1B Selection Final Rule to December 31, 2021.
• The H-1B Selection Final Rule, originally scheduled to take effect on March 9, 2021, would replace the current randomized H-1B selection process with a system that prioritizes foreign nationals being offered a higher salary: positions that meet or exceed the highest wage level for the occupation and worksite(s) based on the Dept. of Labor’s four-level wage system.   
• This delay follows a January 20^th memo from the Biden Administration asking federal agencies to consider the postponement of any new regulations published but not yet in effect.
• DHS states that the delay will allow sufficient time for training, system development, testing, modifications, and outreach as needed for effective implementation, as well as evaluation of the rule and corresponding policies.
• Selection for this year’s H-1BFY Cap Lottery will proceed as it did last year (random selection); and USCIS will apply the current regulations to any registration period before Dec. 31, 2021.

MT Perspective:

MT is closely monitoring the fast-changing immigration landscape, will provide updates on developing situations, and continue to assess and advise affected clients with recommendations.

USCIS Announces H-1BFY Cap Registration Schedule for FY 2022

USCIS has announced that this year’s H-1BFY Cap Registration period will run from March 9^th to March 25^th. The H-1B Electronic Registration Process will proceed as it did last year.

MT has been reaching out to clients to prepare for H-1BFY Cap registration and will continue to keep clients apprised of changes and new information. 

BIDEN REINSTATES COVID-19 TRAVEL BAN AND ADDS SOUTH AFRICA

• Effective January 26, 2021, President Biden reinstated a COVID-19 related restriction on travel from Brazil, Ireland, the UK and the Schengen Area. The Trump Administration had scheduled this ban to be lifted on January 26, 2021.

Effective January 30, 2021, this travel ban will expand to include South Africa.

This ban will remain in effect until it is terminated. The COVID-19 related ban on travel from China and Iran remain in place.

• Who is impacted?

Travelers, who were physically present in Brazil, Ireland, the UK, the Schengen Area and South Africa, China, and Iran in the past 14 days may not enter the U.S. unless the travelers meet certain exceptions or are exempt from the ban.  For additional information, please visit the Department of State website.

BIDEN ADMINISTRATION ANNOUNCES REGULATROY FREEZE AND REVIEW

• The White House has requested that all federal agencies freeze the regulatory process on any Trump-era regulations that have not yet taken effect or been finalized.
• If the rules have been published but have not yet taken effect as of January 20, 2021, the White House has requested federal agencies to postpone the effective date to March 21, 2021.
• If the rules have not been published, they will be withdrawn.

• What does this mean?

It is common for the incoming Administration to freeze regulatory activities to review the previous Administration’s agency rules that are not yet in effect or finalized.

This freeze includes the recent DHS rule affecting the fiscal year H-1B cap case registration which prioritizes higher paid workers. It is possible that the agency may delay the effective dates further and/or the rule will be challenged in federal court.  DHS has not yet made any announcements on this new rule since President Biden took office.

BIDEN ENDS TRUMP ERA TRAVEL BAN TARGETING PRIMARILY MUSLIM AND AFRICAN COUNTRIES

• On January 20, 2021, President Biden issued a presidential proclamation revoking travel bans targeting primarily Muslim-majority and African countries.
• Who is impacted?

Nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen will no longer face restrictions on nonimmigrant and/or immigrant visa issuance. Nationals of Eritrea, Kyrgyzstan, Myanmar (Burma), Nigeria, Sudan, and Tanzania will no longer be subject to immigrant visa restrictions.

• What does this mean?

Although the visa restrictions have been revoked, there are several restrictions on visa issuance and travel that remain in effect due to the COVID-19 pandemic. In addition, visa issuance is never guaranteed, as each applicant is subject to background check and vetting.

DOL PROCESSING TIMES UPDATE

• On January 22, 2021, the Department of Labor published updated processing times for PERM labor certification applications (PERM) and prevailing wage determination (PWD) requests.  Average processing times are as follows:
• PERM
  • As of December 31, 2020, DOL was adjudicating applications filed in June 2020 or earlier and auditing cases filed in February 2020 or earlier.
• PWD
  • As of December 31, 2020, DOL was processing PWD requests filed in July or earlier. 
• What does this mean?

DOL’s data is consistent with the actual case processing times for client cases that MT is tracking. Most PERM applications and PWD requests are taking between 6 and 7 months from the date of filing at this time.

MT Perspective:

MT is closely monitoring the fast changing immigration landscape amidst the global pandemic under the Biden Administration.

We will provide updates on the developing situation and continue to assess and advise affected clients with recommendations.

DOL Issued Final Rule Will Dramatically Increase Prevailing Wages

On January 14, 2021, the U.S. Department of Labor (DOL) published a final rule entitled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States,” that will change the four-tier wage-level system used when Occupational Employment Statistics (OES) data is used for permanent labor certifications and labor condition applications (LCA). The final rule is scheduled to take effect on March 15, 2021. If implemented on the scheduled date, the final rule will fundamentally alter the wages employers may be required to pay H-1B, H-1B1, and E-3 nonimmigrants as well as employees with PERM based permanent residence applications. The final rule has multiyear transition periods and although it is set to be implemented on March 15, 2021, the increase in wage minimums will not take effect until July 1, 2021 and will be coupled with a multi-year phase-in period.

Similar to previous administrations, President-elect Biden is expected to issue an executive order on January 20, delaying implementation of rules that have been published during the prior administration, but not yet taken effect, (“midnight regulations”) for 60 days. At this time, it is unclear whether the anticipated postponement of midnight regulations will also delay implementation of the final rule on July 1, 2021. It is also likely that the final rule will be challenged in federal court.

What does this mean?

1. The final rule, which was initially published on October 8, 2020, had been struck down by federal courts but is now scheduled to take effect on March 15, 2021.
2. The final rule will dramatically change the computation of prevailing wage levels, resulting in significantly higher prevailing wages for all occupations and all wage levels in the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics. The new percentiles corresponding to each prevailing wage level are as follows:

• Level I Wage: 35th percentile of the OES wage distribution (currently 17th percentile);
• Level II Wage: 53rd percentile of the OES wage distribution (currently 34th percentile);
• Level III Wage: 72nd percentile of the OES wage distribution (currently 50th percentile); and
• Level IV Wage: 90th percentile of the OES wage distribution (currently 67th percentile).

What are key points for Employers to keep in mind?

1. It is likely that the final rule’s implementation will be delayed by a regulatory freeze ordered by the Biden Administration and/or challenged in federal court.
2. If the final rule is implemented, employers may utilize alternative private wage surveys in lieu of DOL’s prevailing wage survey.

How is MT responding?

• We are monitoring the development closely, as we anticipate a regulatory announcement by the incoming Biden Administration in the near future.