CIS submitted a public comment this week to the Department of Labor (DOL) on its notice of proposed rulemaking (NPRM), titled “Improving Wage Protections for the Temporary and Permanent Employment of Certain Foreign Nationals in the United States”. This rule, if finalized, will increase prevailing wage rates used in several employment-based immigration programs, including the H-1B, H-1B1, E-3, and PERM programs.
CIS generally supported DOL’s efforts to strengthen wage protections and address longstanding concerns that certain employment-based visa programs are used to undercut wages and working conditions for U.S. workers. Raising required wage rates is an important step toward ensuring that employers use these programs to fill genuine labor shortages rather than to obtain lower-cost labor.
CIS also argued, however, that DOL should make additional reforms to better comply with the Immigration and Nationality Act (INA)'s labor protection objectives.
First, CIS urged the department to further strengthen its prevailing wage methodology. While the proposed rule increases wage levels, it continues to allow employers to utilize wage levels that fall below the actual prevailing wage (50th percentile) paid to similarly employed workers in the same occupations and regions. We recommended that DOL amend the rule so that every wage level is set at or above the prevailing wage, better ensuring that foreign labor is not used as a cheaper substitute for available U.S. workers.
Second, CIS encouraged DOL to strengthen its oversight of private or alternative wage surveys. Private wage surveys have long raised concerns because they can produce wage determinations that differ significantly from government data. We urged DOL to amend its rule to require the agency to make data used in private surveys available to the public for inspection by independent or third-party researchers and to establish more rigorous standards for approving and evaluating these surveys. CIS believes that these reforms will help ensure that private wage surveys are not manipulated to suppress wages.
Finally, our comment responded to DOL’s inquiry on an alternate prevailing wage scheme, called “Experience Benchmarking". According to DOL, “[Under an Experience Benchmarking framework], prevailing wage levels for the H-1B, H-1B1, E-3, and PERM programs would be adjusted using a methodology that benchmarks wages to workers with comparable education and experience in the same occupation and geographic area.” While CIS believes that aspects of Experience Benchmarking have value because they reduce employer discretion in assigning wage levels to workers, CIS cautioned that this approach could create new opportunities for employer abuse. Further, CIS believes that Experience Benchmarking may disadvantage both U.S. workers, including recent American graduates, and highly skilled or older foreign workers.
DOL’s rulemaking presents an important opportunity to increase the integrity of employment-based immigration programs and ensure that they operate in a manner consistent with congressional intent. While CIS strongly believes that congressional action is needed to protect U.S. workers, better administration of these programs can allow employers to meet legitimate labor needs while better protecting both U.S. and foreign workers from exploitation and unfair competition.