Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

Federal RegisterOct 8, 2020

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DEPARTMENT OF LABOR

Employment and Training Administration

20 CFR Parts 655 and 656

[DOL Docket No. ETA-2020-0006]

RIN 1205-AC00

Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States

ACTION:

Interim final rule; request for comments.

SUMMARY:

The Department of Labor (DOL or the Department) is amending Employment and Training Administration (ETA) regulations governing the prevailing wages for employment opportunities that United States (U.S.) employers seek to fill with foreign workers on a permanent or temporary basis through certain employment-based immigrant visas or through H-1B, H-1B1, or E-3 nonimmigrant visas. Specifically, DOL is amending its regulations governing permanent labor certifications and Labor Condition Applications (LCAs) to incorporate changes to the computation of wage levels under the Department's four-tiered wage structure based on the Occupational Employment Statistics (OES) wage survey administered by the Bureau of Labor Statistics (BLS). The primary purpose of these changes is to update the computation of prevailing wage levels under the existing four-tier wage structure to better reflect the actual wages earned by U.S. workers similarly employed to foreign workers. This update will allow DOL to more effectively ensure that the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.

DATES:

This interim final rule is effective on October 8, 2020. Written comments and related material must be received on or before November 9, 2020.

ADDRESSES:

You must submit comments, identified as DOL Docket No. ETA-2020-0006, via

https://beta.regulations.gov

, a Federal E-Government website that allows the public to find, review, and submit comments on documents that agencies have published in the

Federal Register

and that are open for comment. Simply type “1205-AC00” (in quotes) in the Comment or Submission search box, click Go, and follow the instructions for submitting comments.

Docket:

For access to the docket and to read background documents or comments received, go to the Federal e-Rulemaking Portal at

https://beta.regulations.gov

, referencing DOL Docket No. ETA-2020-0006. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

FOR FURTHER INFORMATION CONTACT:

For further information regarding 20 CFR parts 655 and 656, contact Brian D. Pasternak, Administrator, Office of Foreign Labor Certification, Employment and Training Administration, Department of Labor, Box #12-200, 200 Constitution Avenue NW, Washington, DC 20210, telephone: (202) 513-7350 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY/TDD by calling the toll-free Federal Information Relay Service at 1 (877) 889-5627.

SUPPLEMENTARY INFORMATION:

I. Background

A. Legal Framework

The Immigration and Nationality Act (INA or Act), as amended, assigns responsibilities to the Secretary of Labor (Secretary) relating to the entry and employment of certain categories of immigrants and nonimmigrants.

This rule deals with the prevailing wage levels used with respect to the labor certifications that the Secretary issues for certain employment-based immigrants and the labor condition applications (LCA) that the Secretary certifies in connection with the temporary employment of foreign workers under the H-1B, H-1B1, and E-3 visa classifications.

There are two general categories of U.S. visas: immigrant and nonimmigrant. Immigrant visas are issued to foreign nationals who intend to live permanently in the U.S. Nonimmigrant visas are for foreign nationals who enter the U.S. on a temporary basis—for tourism, medical treatment, business, temporary work, study, or other reasons.

8 U.S.C. 1101(a)(15)(E)(iii), (a)(15)(H)(i)(b), (a)(15)(H)(i)(b1).

1. Permanent Labor Certifications

The INA prohibits the admission of certain employment-based immigrants unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that (I) there are not sufficient workers who are able, willing, qualified and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor, and (II) the employment of such alien will not adversely affect the wages and working conditions of workers in the United States similarly employed.

8 U.S.C. 1182(a)(5)(A). Although this provision references the Attorney General, the authority to adjudicate immigrant visa petitions was transferred to the Director of the Bureau of Citizenship and Immigration Services (an agency within the Department of Homeland Security) by the Homeland Security Act of 2002, Public Law 107-296, 451(b) (codified at 6 U.S.C.271(b)). Under 6 U.S.C. 557, references in federal law to any agency or officer whose functions have been transferred to the Department of Homeland Security shall be deemed to refer to the Secretary of Homeland Security or other official or component to which the functions were transferred.

This “labor certification” requirement does not apply to all employment-based immigrants. The INA provides for five “preference” categories or immigrant visa classes, only two of which—the second and third preference employment categories (commonly called the EB-2 and EB-3 immigrant visa classifications)—require a labor certification.

An employer seeking to sponsor a foreign worker for an immigrant visa under the EB-2 or EB-3 immigrant visa classifications generally must file a visa petition with the Department of Homeland Security (DHS) on the worker's behalf, which must include a labor certification from the Secretary of Labor.

Further, the Department of State (DOS) may not issue a visa unless the Secretary of Labor has issued a labor certification in conformity with the relevant provisions of the INA.

If the Secretary determines both that there are not sufficient able, willing, qualified, and available U.S. workers and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers, the Secretary so certifies to DHS and DOS by issuing a permanent labor

certification. If the Secretary cannot make one or both of the above findings, the application for permanent employment certification is denied.

See

8 U.S.C. 1153(b)(2), (3), 1182(a)(5)(D). Section 1153(b)(2) governs the EB-2 classification of immigrant work visas granted to foreign workers who are either professionals holding advanced degrees (master's degree or above) or foreign equivalents of such degrees, or persons of “exceptional ability” in the sciences, arts, or business. To gain entry in this category, the foreign worker must have prearranged employment with a U.S. employer that meets the requirements of labor certification, unless the work he or she is seeking admission to perform is in the “national interest,” such as to qualify for a waiver of the job offer (and hence, the labor certification) requirement under 8 U.S.C. 1153(b)(2)(B). Section 1153(b)(3), governs the EB-3 classification of immigrant work visas granted to foreign workers who are either “skilled workers,” “professionals,” or “other” (unskilled) workers, as defined by the statute. To gain entry in this category, the foreign worker must have prearranged employment with a U.S. employer that meets the requirements of labor certification, without exception.

8 U.S.C. 1154(a)(1)(F), 1182(a)(5)(A) and (D).

8 U.S.C. 1153(b)(3)(C), 1153(b)(2), 1201(g).

2. Labor Condition Applications

The H-1B nonimmigrant visa program allows U.S. employers to temporarily employ foreign workers in specialty occupations. “Specialty occupation” is defined by statute as an occupation that requires the theoretical and practical application of a body of “highly specialized knowledge,” and a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the U.S.

Similar to the H-1B visa classification, the H-1B1 and E-3 nonimmigrant visa classifications also allow U.S. employers to temporarily employ foreign workers in specialty occupations, except that these classifications specifically apply to the nationals of certain countries: The H-1B1 visa classification applies to foreign workers in specialty occupations from Chile and Singapore,

and the E-3 visa classification applies to foreign workers in specialty occupations from Australia.

The Secretary must certify an LCA filed by the foreign worker's prospective U.S. employer before the prospective employer may file a petition with DHS on behalf of a foreign worker for H-1B, H-1B1, or E-3 nonimmigrant classification.

The LCA contains various attestations from the employer about the wages and working conditions that it will provide for the foreign worker.

See

8 U.S.C 1101(a)(15)(H)(i)(b), 1184(i).

8 U.S.C. 1101(a)(15)(H)(i)(b1).

8 U.S.C. 1101(a)(15)(E)(iii).

8 U.S.C. 1101(a)(15)(E)(iii), (a)(15)(H)(i)(b), (a)(15)(H)(i)(b1); 8 CFR 214.2(h)(2)(i)(E).

See generally

8 U.S.C. 1182(n), (t); 20 CFR part 655, subpart H.

B. Description of the Permanent Labor Certification Process

The Department's regulations at 20 CFR part 656 govern the labor certification process and set forth the responsibilities of employers who desire to employ, on a permanent basis, foreign nationals covered by the INA's labor certification requirement.

The current regulations were issued through a final rule implementing the streamlined permanent labor certification program through revisions to 20 CFR part 656 was published on December 27, 2004, and took effect on March 28, 2005.

See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System,

69 FR 77326 (Dec. 27, 2004). The Department published a final rule on May 17, 2007 to enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to permanent labor certification, commonly known as “the fraud rule.”

Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity,

72 FR 27904 (May 17, 2007).

Prior to filing a labor certification application, the employer must obtain a Prevailing Wage Determination (PWD) for its job opportunity from OFLC's National Prevailing Wage Center (NPWC).

The standards and procedures governing the PWD process in connection with the permanent labor certification program are set forth in the Department's regulations at 20 CFR 656.40 and 656.41. If the job opportunity is covered by a Collective Bargaining Agreement (CBA) that was negotiated at arms-length between a union and the employer, the wage rate set forth in the CBA agreement is considered the prevailing wage for labor certification purposes.

In the absence of a prevailing wage rate derived from an applicable CBA, the employer may elect to use an applicable wage determination under the Davis-Bacon Act (DBA) or McNamara-O'Hara Service Contract Act (SCA), or provide a wage survey that complies with the Department's standards governing employer-provided wage data.

In the absence of any of the above sources, the NPWC will use the Bureau of Labor Statistics (BLS) Occupational Employment Statistics (OES) survey to determine the prevailing wage for the employer's job opportunity.

After reviewing the employer's application, the NPWC will determine the prevailing wage and specify the validity period, which may be no less than 90 days and no more than one year from the determination date. Employers must either file the labor certification application or begin the recruitment process, required by the regulation, within the validity period of the PWD issued by the NPWC.

20 CFR 656.15(b)(1), 656.40(a).

See

20 CFR 656.40(b)(1).

See

20 CFR 656.40(b), (g).

See

20 CFR 656.40(b)(2).

20 CFR 656.40(c).

Once the U.S. employer has received a PWD, the process for obtaining a permanent labor certification generally begins with the U.S. employer filing an

Application for Permanent Employment Certification,

Form ETA-9089, with OFLC.

As part of the standard application process, the employer must describe, among other things, the labor or services it needs performed; the wage it is offering to pay for such labor or services and the actual minimum requirements of the job opportunity; the geographic location(s) where the work is expected to be performed; and the efforts it made to recruit qualified and available U.S. workers. Additionally, the employer must attest to the conditions listed in its labor certification application, including that “[t]he offered wage equals or exceeds the prevailing wage determined pursuant to [20 CFR 656.40 and 656.41] and the wage the employer will pay to the alien to begin work will equal or exceed the prevailing wage that is applicable at the time the alien begins work or from the time the alien is admitted to take up the certified employment.”

Applications for Schedule A occupations are eligible to receive pre-certification and bypass the standard applications review process. In those cases, employers file the appropriate documentation directly with DHS.

See

20 CFR 656.5, 656.15.

20 CFR 656.10(c)(1).

Through the requisite test of the labor market, the employer also attests, at the time of filing the Form ETA-9089, that the job opportunity has been and is clearly open to any U.S. worker and that all U.S. workers who applied for the job opportunity were rejected for lawful, job-related reasons. OFLC performs a review of the Form ETA-9089 and may either grant or deny a permanent labor certification. Where OFLC grants a permanent labor certification, the employer must submit the certified Form ETA-9089 along with an

Immigrant Petition for Alien Worker,

Form I-140 (Form I-140 petition) to DHS. A permanent labor certification is valid only for the job opportunity, employer, foreign worker, and area of intended employment named on the Form ETA-9089, and must be filed in support of a Form I-140 petition within 180 calendar days of the date on which OFLC granted the certification.

20 CFR 656.30(b)(1).

C. Description of the Temporary Labor Condition Application Process

The Department's regulations at 20 CFR part 655, subpart H, govern the process for obtaining a certified LCA and set forth the responsibilities of employers who desire to temporarily employ foreign nationals in H-1B, H-1B1, and E-3 nonimmigrant classifications.

A prospective employer must attest on the LCA that (1) it is offering to and will pay the nonimmigrant, during the period of authorized employment, wages that are at least the actual wage level paid by the employer to all other employees with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupational classification in the area of intended employment, whichever is

greater (based on the best information available at the time of filing the attestation); (2) it will provide working conditions for the nonimmigrant worker that will not adversely affect working conditions for similarly employed U.S. workers; (3) there is no strike or lockout in the course of a labor dispute in the occupational classification at the worksite; and (4) it has provided notice of its filing of an LCA to its employee's bargaining representative for the occupational classification affected or, if there is no bargaining representative, it has provided notice to its employees in the affected occupational classification by posting the notice in a conspicuous location at the worksite or through other means such as electronic notification.

8 U.S.C. 1182(n)(1)(A)-(C), (t)(1)(A)-(C); 20 CFR 655.705(c)(1), 655.730(d).

As relevant here, the prevailing wage must be determined as of the time of the filing of the LCA.

In contrast to the permanent labor certification process, an employer is not required to obtain a PWD from the NPWC.

However, like the permanent labor certification process, if there is an applicable CBA that was negotiated at arms-length between a union and the employer that contains a wage rate applicable to the occupation, the CBA must be used to determine the prevailing wage.

In the absence of an applicable CBA, an employer may base the prevailing wage on one of several sources: a PWD from the NPWC; an independent authoritative source that satisfies the requirements in 20 CFR 655.731(b)(3)(iii)(B); or another legitimate source of wage data that satisfies the requirements in 20 CFR 655.731(b)(3)(iii)(C).

20 CFR 655.731(a)(2).

Id.

20 CFR 655.731(a)(2)(ii)(A) through (C).

An employer may not file an LCA more than six months prior to the beginning date of the period of intended employment.

Unless the LCA is incomplete or obviously inaccurate, the Secretary must certify it within seven working days of filing.

Once an employer receives a certified LCA, it must file the

Petition for Nonimmigrant Worker,

Form I-129 (“Form I-129 Petition”) with DHS if seeking classification of the alien as an H-1B worker.

Upon petition, DHS then determines, among other things, whether the employer's position qualifies as a specialty occupation and, if so, whether the nonimmigrant worker is qualified for the position.

20 CFR 655.730.

8 U.S.C. 1182(n)(1), (t)(2)(C); 20 CFR 655.740(a)(1).

For aliens seeking H-1B1 or E-3 classification, the alien may apply directly to the State Department for a visa once the LCA has been certified.

D. History and Current Use of the Four-Tiered OES Prevailing Wage Structure

Historically, the Department relied on State Workforce Agencies (SWAs) to determine prevailing wages for purposes of its nonagricultural labor certification programs.

To determine the prevailing wage for a particular job opportunity, SWAs relied on wage rates that were determined to be prevailing for the occupation and locality under other Federal laws—

e.g.,

wages issued for purposes of the DBA or SCA—or when applicable, wages negotiated in a CBA.

In the absence of such wage determinations, SWAs determined prevailing wages based on wage information obtained “by purchasing available published surveys or by conducting ad hoc surveys of employers in the area of intended employment.”

See, e.g., Miscellaneous Amendments,

32 FR 10932 (July 26, 1967).

See, e.g., id.

Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System,

67 FR 30466, 30479 (May 6, 2002).

Beginning at least as early as the 1990s, users of the H-1B program and permanent program users urged the Department to “create a multi-tiered wage structure to reflect the largely self-evident proposition that workers in occupations that require sophisticated skills and training receive higher wages based on those skills.”

Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program,

76 FR 3452, 3453 (Jan. 19, 2011).

The Department first adopted a multi-tiered system to determine prevailing wages for the nonagricultural labor certification programs in 1995, when it issued General Administration Letter No. 4-95 (GAL 4-95).

As relevant here, GAL 4-95 directed SWAs to provide two wage levels—entry and experienced—when they conducted prevailing wage surveys for nonagricultural positions.

Specifically, under this guidance, wage rates issued under the DBA, SCA, or a collective bargaining agreement continued to be controlling, if applicable, and, when they were not, SWAs continued to conduct their own prevailing wage surveys or use published wage surveys.

However, under GAL 4-95, when SWAs conducted such surveys, they had to distinguish between entry-level positions and positions requiring several years of experience, taking into account factors like the level of education and experience required, complexity of the tasks performed, and level of supervision and autonomy.

General Administration Letter No. 4-95 (May 18, 1995),

available at

https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=485

See id.

at 5 (“The job related education, training and experience requirements of an occupation are factors to be considered in making prevailing wage determinations. A prevailing wage survey and/or determination should distinguish between entry level positions and those requiring several years of experience. At a minimum, a distinction should be made based on whether or not the occupation involved in the employer's job offer is entry level or at the experienced level.”). As the Department later explained, adoption of tiered wages was necessary for the H-1B and permanent labor certification programs because job opportunities in these programs “reflect[] a wide range of experience, skills, and knowledge which appropriately correspond to stratified wage levels.”

Wage Methodology for the Temporary Non-agricultural Employment H-2B Program,

76 FR 3452, 3461 (Jan. 19, 2011).

GAL 4-95 at 1-2.

Id.

at 5-6.

In October 1997, the Department amended its prevailing wage guidance to incorporate the wage component of the recently-expanded OES survey.

Specifically, pursuant to General Administration Letter No. 2-98 (GAL 2-98), SWAs continued to assign prevailing wage determinations using wage rates issued under the DBA, SCA, or a CBA, where applicable. But in the absence of such wages, the Department now directed SWAs to use the OES survey (rather than conduct their own prevailing wage survey or use other public or private wage surveys).

As described below, the Department divided OES wage data into two skill levels: a Level I wage for “beginning level employees” and a Level II wage for “fully competent employees.

To determine the prevailing wage level applicable to a particular position, SWAs considered the level of skill required by the employer, identified the appropriate occupation, and selected the appropriate wage level.

Prevailing Wage Policy for Nonagricultural Immigration Programs,

General Administration Letter No. 2-98 (GAL 2-98) (Oct. 31, 1997),

available at

https://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=942

GAL 2-98 at 1. Under this guidance, employers could still make specific requests for prevailing wages based on different (non-OES) wage data, provided it met certain requirements.

Id.

at 8. But where an employer provided data that met applicable requirements, that data was used only to determine the prevailing wage for purposes of that employer's job opportunity, and not for subsequent prevailing wage requests in that occupation.

See id.

at 9.

GAL 2-98 at 5.

Id.

GAL 2-98 did not change the definition of the skill levels that were first announced in GAL 4-95, but it did direct SWAs to issue a level II wage in several additional contexts, including cases in which state licensure was required for independent performance of all of the duties encompassed by the

occupation and the job opportunity required such a worker.

Id.

GAL 2-98 was accompanied by a Memorandum of Understanding (MOU) between ETA and BLS, wherein BLS agreed to provide, through its cooperative agreements with the SWAs, two wage levels for each occupational classification in areas of intended employment, where available.

Because the OES survey does not provide data about skill differentials within Standard Occupational Classification (SOC) codes, ETA established the entry and experienced skill levels mathematically. Specifically, under the MOU, BLS computed a Level I wage calculated as the mean of the lowest paid one-third of workers in a given occupation (approximately the 17th percentile of the OES wage distribution) and a Level II wage calculated as the mean wage of the highest paid upper two-thirds of workers (approximately the 67th percentile). This two-tier wage structure was based on the assumption that the mean wage of the lowest paid one-third of the workers surveyed in each occupation could provide a surrogate for the entry-level wage, but the Department did not conduct any meaningful economic analysis to test its validity.”

Rather, as the Department explained at the time, it adopted this structure to “insure the use of a consistent methodology by all States” in making prevailing wage determinations.

The wage structure adopted in 1998, which was developed without notice and comment, has never been codified in the Department's regulations.

Intra-Agency Memorandum of Understanding executed by Mr. John R. Beverly, III, Director, U.S. Employment Service, ETA, and Ms. Katharine Newman, Chief, Division of Financial Planning and Management, Office of Administration, BLS (Sept. 30, 1998).

GAL 2-98,

available at

https://oui.doleta.gov/dmstree/gal/gal98/gal_02-98.htm

See also Wage Methodology for the Temporary Non-agricultural Employment H-2B Program,

76FR 3452, 3453 (Jan. 19, 2011);

Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2,

78 FR 24047, 24051 (Apr. 24, 2013).

GAL 2-98;

see also Wage Methodology for the Temporary Non-agricultural Employment H-2B Program,

76 FR 3452, 3464 (Jan. 19, 2011) (explaining that the Department moved to the OES in part due to the “inconsistencies that resulted from State to State in the treatment of the same job opportunity, reflecting not the local conditions but the quality of the surveyors and the collection instruments used” and because the Department determined that “the OES provides a more reliable and cost-effective means for producing prevailing wage rates on a consistent basis across the country.”).

In 2002, the Department issued additional guidance to SWAs regarding the assignment of prevailing wage levels.

In this guidance, the Department stressed that skill levels should not be assigned solely on the basis of the occupational classification because “[a]ll OES/SOC codes encompass both level I and level II positions . . . including managerial and professional jobs at the high end, and assistant or helper codes at the low end.”

Rather, as the guidance emphasized throughout, the employer's job description and the nature of the work were the primary determinants of a wage level determination. The Department directed SWAs to consider relevant factors, such as “the complexity of the job duties, the level of judgment, the amount [and nature] of supervision, and the level of understanding required to perform the job duties,” and to a lesser extent, factors like licensure requirements or the position's location in the employer's hierarchy.

Job duties alone could necessitate a level II determination where, for example, they indicated the employee would “operate with little supervision, perform advanced [] procedures, and exercise great latitude of independent judgment.”

The Department also directed states to consider whether the job opportunity required education or experience exceeding entry-level occupational requirements and, reiterating GAL 2-98, explained that “the wage rate for a job offer that requires an advanced degree (Master's or Ph.D.)” was to be considered level II if a lesser degree was “normally required for entry into the occupation.”

Training and Employment Guidance Letter No. 5-02 (TEGL 5-02): Clarification of Level I and Level II Skill Levels for the Purposes of Prevailing Wage Determinations (Aug. 7, 2002),

available at

https://oui.doleta.gov/dmstree/tegl/tegl2k2/tegl_05-02.htm

Id.

at 2.

Id.

at 5 (referring to job opportunities for medical residents that might otherwise be considered entry level).

Id.

at 4.

That same year, in response to a proposed rule amending the permanent labor certification process, the Department received comments criticizing it “for arbitrarily dividing salary data into two wage levels” and “suggest[ing] existing OES wage data would be more useful if the number of wage levels were expanded to appropriately differentiate among various occupational groupings.”

For example, one commenter believed adoption of “[m]ulti-tiered wage levels . . . set for each occupation [would] better reflect `real world' experience” and stated that “[a] two-tier wage level is unrealistic where an entry level job by its nature requires considerable independence (

e.g.,

a teacher) or the salary for the second level is markedly higher,

e.g.,

post-doctoral research fellow, medical resident, college instructor, marketing manager.”

Similarly, another commenter expressed concern that use of just one upper-bound, level II wage for “all experienced workers create[d] gross inaccuracies at both ends of the spectrum,” and asserted that “[m]ultiple levels allow for a reasoned wage based upon years of experience and levels of responsibility that reflect real world patterns.”

Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System,

69 FR 77326, 77367 (Dec. 27, 2004).

Id.

at 77370.

The Department adopted the four-tier prevailing wage level structure that is currently in effect in response to the H-1B Visa Reform Act of 2004.

As relevant here, the H-1B Visa Reform Act of 2004 amended section 212(p) of the INA to provide where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.

Consolidated Appropriations Act,

2005, Public Law 108-447, div. J, tit. IV, 423; 118 Stat. 2809 (Dec. 8, 2004).

8 U.S.C. 1182(p)(4).

To implement this provision, the Department published comprehensive Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs (“2005 Guidance”), which expanded the two-tier OES wage level system to provide four “skill levels”: Level I “entry level,” Level II “qualified,” Level III “experienced,” and Level IV “fully competent.”

The Department applied the formula in the statute to its two existing wage levels to set Levels I through IV, respectively, at approximately the 17th percentile, the 34th percentile, the 50th percentile, and the 67th percentile.

ETA Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs 7 (May 2005),

available at

https://www.foreignlaborcert.doleta.gov/pdf/policy_nonag_progs.pdf

See id.

at 1.

In 2010, the Department centralized the prevailing wage determination process for nonagricultural labor certification programs within OFLC's NPWC, eliminating SWAs' involvement in the process.

In preparation for this transition, the Department issued new Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs (2009 Guidance).

This guidance currently governs OFLC's PWD process for the PERM, H-1B, H-1B1, and E-3 visa programs and will continue to govern OFLC's PWD process for these programs.

See Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes,

73 FR 78020 (Dec. 19, 2008);

Prevailing Wage Determinations for Use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and Permanent Labor Certification Programs; Prevailing Wage Determinations for Use in the Commonwealth of the Northern Mariana Islands,

74 FR 63796 (Dec. 4, 2009).

Employment and Training Administration; Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs (Revised Nov. 2009) (

hereinafter

2009 Guidance),

available at

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf.

When assigning a prevailing wage using BLS OES data, the NPWC examines the nature of the job offer, the area of intended employment, and job duties for workers that are similarly employed.

In particular, the NPWC uses the SOC taxonomy to classify the employer's job opportunity into an occupation by comparing the employer's job description, title, and requirements to occupational information provided in sources like the Department's Occupational Information Network (O*Net).

Once the NPWC identifies the applicable SOC code, it determines the appropriate wage level for the job opportunity by comparing the employer's job description, title, and requirements to those normally required for the occupation, as reported in sources like O*Net. This determination involves a step-by-step process in which each job opportunity begins at Level I (entry level) and may progress to Level II (experienced), Level III (qualified), or Level IV (fully competent) based on the NPWC's comparison of the job opportunity to occupational requirements, including the education, training, experience, skills, knowledge, and tasks required in the occupation.

After determining the prevailing wage level, the NPWC issues a PWD to the employer using the OES wage for that level in the occupation and area of intended employment.

Id.

at 1.

Id.

at 1-7;

see also

8 CFR 214.2(h)(4)(iii). That said the INA ultimately does not admit of any exceptions to the rule that a job must require a bachelor's degree in a specific specialty, or its equivalent, to qualify as a specialty occupation, meaning, whatever its relevance to determining whether a particular job is in a “specialty occupation,” the fact that many SOC classifications contain workers that would not meet the statutory definition is highly relevant to how OES data for an entire occupational classification is used in setting prevailing wage levels. Put another way, as the court in

Taylor Made

acknowledged, the fact that a bachelor's degree is not required in all cases for a given occupation means that some number of workers within the occupation are not performing work in a specialty occupation.

Id.

Because such workers are almost certainly captured within OES data, and the Department calculates prevailing wages by taking into account the actual wages reported for broad swaths of workers in the OES data, the presence of these workers in the survey data directly relates to how prevailing wage levels are set, even if it does not have a great deal of significance for how a single, specific job in an occupation is determined to be or not to be in a “specialty occupation.”

101

See Ajit Healthcare,

2014 WL 11412671, at 4.

102

Temporary Alien Workers Seeking Classification Under the Immigration and Nationality Act,

56 FR 61111, 61113 (December 2, 1991) (emphasis added).

103

8 U.S.C. 1184(i);

see Royal Siam Corp.

Chertoff,

484 F.3d 139, 147 (1st Cir. 2007).

A review of the OOH entries for the occupations in which H-1B nonimmigrants most commonly work demonstrates that most H-1B workers fall within SOC classifications that include some number of workers who would not qualify for employment in a specialty occupation. For instance, the OOH entries for Software Developers—an occupation accounting for over 40 percent of all certified LCAs

104

—provides that such workers “

usually

have a bachelor's degree in computer science and strong computer programming skills.”

105

For Computer Systems Analysts, which make up approximately 8.8 percent of all certified LCAs,

106

“a bachelor's degree in a computer or information science field is common, although not always a requirement. Some firms hire analysts with business or liberal arts degrees who have skills in information technology or computer programming.”

107

Similarly, the O*Net database, which surveys employers on the types of qualifications they seek in workers for various occupations, shows that, on average, over 13 percent of all jobs in the occupations that H-1B workers are most likely to work in do not require workers to have even a bachelor's degree.

108

Moreover, the O*Net does not differentiate between jobs that require bachelor's degrees in specific specialties and job for which a general bachelor's degree will suffice. It is therefore a reasonable inference that the percentage of jobs in these occupations that would not qualify as specialty occupation positions for purposes of the INA is almost certainly even higher.

104

Office of Foreign Labor Certification, H-1B Temporary Specialty Occupations Labor Condition Program—Selected Statistics, FY 2019,

available at https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2019/H-1B_Selected_Statistics_FY2019_Q4.pdf.

105

Bureau of Labor Statistics, Occupational Outlook Handbook, Software Developers,

available at https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm.

106

Office of Foreign Labor Certification, H-1B Temporary Specialty Occupations Labor Condition Program—Selected Statistics, FY 2019,

available at https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2019/H-1B_Selected_Statistics_FY2019_Q4.pdf.

107

Bureau of Labor Statistics, Occupational Outlook Handbook, Computer Systems Analysts,

available at https://www.bls.gov/ooh/computer-and-information-technology/computer-systems-analysts.htm.

108

See

Office of Foreign Labor Certification, H-1B Temporary Specialty Occupations Labor Condition Program—Selected Statistics, FY 2019,

available at https://www.foreignlaborcert.doleta.gov/pdf/PerformanceData/2019/H-1B_Selected_Statistics_FY2019_Q4.pdf;

O*NET Online,

https://www.onetonline.org/.

Simply put, the universe of workers surveyed by the OES for some of the most common occupational classifications in which H-1B workers are employed is larger than the pool of workers who can be said to have levels of education and experience comparable to those of even the least skilled H-1B

workers performing work in a specialty occupation. Because the statutory scheme requires the Department to set the prevailing wage levels based on what workers similarly employed to foreign workers make, taking into account workers' qualifications and, as noted, the large majority of foreign workers are H-1B workers, it would be inappropriate to consider the wages of the least educated and experienced workers in these occupational classifications in setting the prevailing wage levels. To conclude otherwise would place the Department at odds with one of the purposes of the INA's wage protections—to ensure that foreign workers earn wages comparable to the wages of their U.S. counterparts.

This consideration also demonstrates the inconsistency of the existing wage levels with the statutory and regulatory framework. As noted above, the Department's first wage level is currently set by calculating the mean of the bottom third of the OES wage distribution. That means the wages for many H-1B workers are set based on a calculation that takes into account wages paid to workers who almost certainly would not qualify to work in a “specialty occupation,” as defined by the INA. The Department has noted previously that “workers in occupations that require sophisticated skills and training receive higher wages based on those skills.”

109

As a worker's education and skills increase, his wages are expected to as well.

110

For that reason, it is likely that workers at the lowest end of an occupation's wage distribution generally have the lowest levels of education, experience, and responsibility in the occupation. In consequence, if the occupation by definition includes workers who do not have the level of specialized knowledge required of H-1B workers, the very bottom of the wage distribution should be discounted in determining the appropriate baseline along the OES wage distribution to establish the entry-level wage under the four-tiered wage structure. Yet the existing wage structure makes such workers a central component of the prevailing wage calculation.

111

109

Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Part 2,

78 FR 24047, 24051 (Apr. 24, 2013).

110

See

Bureau of Labor Statistics, Learn more, earn more: Education leads to higher wages, lower unemployment,

available at https://www.bls.gov/careeroutlook/2020/data-on-display/education-pays.htm.

111

For example, the occupation of Software Developers, which accounts for a large number of H-1B workers, does not, as explained above, require the same degree of specialized knowledge as a baseline entry requirement as does the INA's definition of “specialty occupation.” Yet approximately 10 percent of all LCAs filed with the Department for software developer positions classify those positions as entry-level, meaning that under the current wage levels the wages paid to such specialty occupation workers are calculated based, at least in part, on the wages paid to some workers who do not have comparable specialized knowledge and expertise. This outcome directly contravenes the INA's requirement that H-1B workers be paid wages commensurate with the wages paid to U.S. workers with similar levels of education, experience, and responsibility.

Similarly, the current Level IV wage is set by calculating the mean of the upper two-thirds of the wage distribution. That means that the wage level provided for the most experienced and highly educated H-1B workers is determined, in part, by taking into account a sizeable number of workers who do not even make more than the median wage of the occupation. Given the correlation between wages and skills, this calculation also would appear inconsistent with the statutory and regulatory framework. Common sense dictates that workers making less than the median wage of the occupation cannot be regarded as being similarly qualified to the most competent and experienced members of that occupation.

The same reasons for discounting a portion of the workers at the bottom of the OES wage distribution in order to compute appropriate entry-level wages—because such workers are not similarly employed to even the least skilled H-1B workers—also apply to the wages for the EB-2 immigrant visa preference classification and the E-3 and H-1B1 nonimmigrant programs, for which the Department also uses the four-tier prevailing wage structure.

The E-3 and H-1B1 visa classifications, like the H-1B classification, have as a prerequisite for obtaining a visa that the alien work in a specialty occupation.

112

Thus those programs' relation to the OES wage data is essentially identical to that of the H-1B program.

112

See

8 U.S.C. 1184(i).

As for the EB-2 classification, the reasons for discounting the lower end of the OES wage distribution for setting the baseline to establish an entry-level wage for the classification are even more apparent than they are for the specialty occupation programs. Under the INA, the EB-2 classification applies to individuals who are “members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States.”

113

USCIS regulations, in turn, define an “advanced degree” means any United States academic or professional degree or a foreign equivalent degree above that of baccalaureate. A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master's degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.

114

113

8 U.S.C. 1153(b)(2)(A).

114

8 CFR 204.5(k)(2).

The regulation goes on to define “exceptional ability” to mean “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

115

Id.

As is the case for H-1B nonimmigrants, the baseline, minimum qualifications that an EB-2 immigrant must possess exceed the educational and experiential requirements the OOH describes as generally necessary to enter some of the most common SOC occupational classifications in which EB-2 immigrants work. For example, the most common occupation in which PERM labor certifications—of which applications for EB-2 immigrants represent a substantial share—are sought is Software Developers, which accounts for nearly 40 percent of all approved PERM applications. As already noted, according to the OOH, Software Developers “

usually

have a bachelor's degree in computer science and strong computer programming skills.”

116

A master's degree, generally a prerequisite for receiving an EB-2 visa, is therefore substantially above the typical, baseline qualifications needed to work as a Software Developer. Similarly, a Software Developer who satisfies the regulatory definition of “exceptional ability” would be,

ipso facto,

more highly skilled than the typical entry-level-worker in that occupation. This pattern holds for most of the top occupations into which PERM applications fall.

117

116

Bureau of Labor Statistics, Occupational Outlook Handbook, Software Developers,

available at https://www.bls.gov/ooh/computer-and-information-technology/software-developers.htm.

117

See

Office of Foreign Labor Certification, Permanent Labor Certification Program—Selected Statistics, FY 19,

available at https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/PERM_Selected_Statistics_FY2019_Q4.pdf;

Bureau of Labor Statistics, Occupational Outlook Handbook,

https://www.bls.gov/ooh/.

In sum, the eligibility criteria established by the INA for most of the immigrant and nonimmigrant programs

to which the Department's prevailing wage levels apply set a higher baseline for the minimum qualifications an alien must possess than the minimum qualification requirements that exist for workers generally in the most of the occupations in which these aliens most commonly work. The H-1B, H-1B1, E-3, and EB-2 classifications are for workers with specialized knowledge and skills and/or advanced degrees.

118

Because the INA requires that these workers be paid at least as much as U.S. workers similarly employed—taking into account the experience, education, and level of supervision of such workers—the prevailing wage rates should be formulated based on the wages paid to U.S. workers who similarly possess specialized knowledge and skills in their occupations. Given that not every worker in a given OES occupation is likely to meet that standard, and that workers at the lower end of the wage distribution are also likely to be the workers with the lowest levels of education and experience, the Department has determined it is appropriate to discount the lower portion of the OES distribution in setting the wage levels. The Department should instead identify where within the distribution workers are to be found who possess the same kinds of specialized education and experience possessed by aliens working in the H-1B, H-1B1, E-3, and EB-2 classifications. The wages paid to those U.S. workers can serve as the basis for appropriately adjusting the prevailing wage levels to ensure the employment of foreign workers does not adversely affect the wages and job opportunities of U.S. workers.

118

The Department notes that its assessment of the appropriateness of adjusting the prevailing wage levels in the manner described by this rule with respect to the EB-3 classification is governed by distinct considerations, which are described more fully below.

2. Adverse Effects of Current Prevailing Wage Levels

Beyond their inconsistency with the statutory scheme, the Department has also evaluated evidence on how the existing prevailing wage levels affect U.S. workers, and has concluded that the current levels are harming the wages and job opportunities of U.S. workers, and thus failing to serve the purposes of the INA's wage protections. This is a separate and independent reason justifying the Department's decision to adjust the existing levels. It also demonstrates that whatever assumptions or analyses, left unarticulated, that may have underlay the manner in which the current levels are set were seriously flawed.

First, a number of studies indicate that many H-1B workers are likely paid less than similarly employed U.S. workers in fields with high H-1B utilization. Where the wages of foreign workers are lower than those of U.S. workers, at least two harmful consequences to U.S. workers are likely to follow. In particular, employers will, in some instances, use H-1B workers to displace U.S. workers, and U.S. workers will experience wage suppression. Anecdotal evidence and academic research suggests that both consequences are being experienced by U.S. workers because of the H-1B program, which further substantiates the conclusion that wages for H-1B workers are, in some cases, materially lower than they would be if the prevailing wage levels actually resulted in H-1B wages commensurate with the wages paid to similarly employed U.S. workers with comparable levels of education, experience, and responsibility. Further demonstrating that the current prevailing wage levels do not in many cases reflect market wage rates, data on the actual wages paid by H-1B employers show that some firms do in fact pay H-1B workers wages well above the prevailing wage rates generated through application of the Department's four-tier wage structure. If the prevailing wage levels were correctly approximating the wages commanded by workers in the relevant labor markets, such significant disparities between actual wages and the prevailing wage levels would likely be less common. Such disparities also suggest that firms to which the statute's actual wage clause does not apply can pay wages well below what U.S. workers in the same labor market are paid. The Department also considered various studies that suggest the employment of H-1B workers has positive effects on the wages and job opportunities of U.S. workers. While the Department agrees that this is true in some instances, it is also clear that the current prevailing wage levels often result in adverse effects, and that adjustments to the wage levels are needed to ensure that the positive effects of the program will be enjoyed more widely. Finally, the Department notes that the evidence of the adverse effects of the existing prevailing wage levels in the H-1B program also likely applies to the PERM programs.

To begin, a variety of studies and analyses demonstrate that the current wage levels allow employers to pay H-1B workers wages far below what their U.S. counterparts are paid.

119

Most of these studies compare median H-1B worker earnings in an occupation to median U.S. worker earnings in the same occupation, without directly comparing workers with the same levels of education, experience, and responsibility. To some extent this limits the conclusions that can be drawn from the comparison. That being said, if H-1B workers were truly being used as a supplement to the U.S. workforce, then the wages H-1B workers typically earn would likely not be significantly lower than the wages of U.S. workers in these occupations. Indeed, because H-1B workers are required to possess specialized knowledge and expertise that often exceeds the level of education and experience necessary to enter a given occupation generally, and greater skills are associated with higher earnings, the median H-1B workers should earn a wage that is at least the same, if not more, than the median wage paid to U.S. workers in the occupation. But a variety of studies show that the opposite is occurring.

119

See, e.g.,

Atlantic Council, Reforming US' High-Skilled Guestworker Program, (2019),

available at https://www.atlanticcouncil.org/in-depth-research-reports/report/reforming-us-high-skilled-immigration-program/; The Impact of High-Skilled Immigration on U.S. Workers: Hearing before the Senate Committee on the Judiciary

(February 25, 2016) (testimony of John Miano, representing Washington Alliance of Technology Workers, Local 37083 of the Communications Workers of America, the AFL-CIO); Norman Matloff,

On the Need for Reform of the H-1B Non-Immigrant Work Visa in Computer-Related Occupations,

36 U. Mich. J.L. Reform 815 (2003).

Studies on the subject often focus on the wages paid to H-1B workers in computer-related occupations, in which nearly two-thirds of all H-1B workers are employed.

120

According to some estimates, H-1B employees in information technology (IT) occupations earn wages that are about 25 percent to 33 percent less than U.S. workers' wages, a gap that appears to have persisted for more than two decades.

121

Another analysis estimates that H-1B employees in computer science occupations earn 9 percent less than U.S. workers.

122

Although the precise findings of wage differences are not uniform, the results generally show meaningful wage differences in fields with high proportions of H-1B workers. Notably, as would be expected, the same phenomenon of markedly lower wages for H-1B workers are generally not found in fields with lower proportions of H-1B workers.

123

120

See

U.S. Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers Fiscal Year 2019 Annual Report to Congress October 1, 2018-September 30, 2019, (2020),

available at https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf,

(showing 66 percent of H-1B petitions approved in FY2019 were for computer-related occupations).

121

Sean McLain & Dhanya Ann Thoppil, Bulging Staff Cost, Shrinking Margins, CRISIL Research, (2019),

available at https://www.crisil.com/en/home/our-analysis/reports/2019/05/bulging-staff-cost-shrinking-margins.html;

Sean McLain & Dhanya Ann Thoppil,

U.S. Visa Bill `Very Tough' for Indian IT, The Wall Street Journal

, April 18, 2013, available at

https://blogs.wsj.com/indiarealtime/2013/04/18/u-s-visa-bill-very-tough-for-indian-it/?mod=wsj_streaming_latest-headlines;

The State of Asian Pacific America,” Paul Ong (ed.),

LEAP Asian Pacific American Public Policy Institute and UCLA Asian American Studies Center, 1994, pp. 179-180; Carnegie Endowment for International Peace, Balancing Interests: Rethinking U.S. Selection of Skilled Immigrants, (1996).

122

Youyou Zhou,

Most H-1B workers are paid less, but it depends on the job,

Associated Press, April 18, 2017,

available at https://apnews.com/afs:Content:873580003/Most-H-1B-workers-are-paid-less,-but-it-depends-on-the-type-of-job.

123

See, e.g.,

American Immigration Council, The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages, and the Economy (2020),

available at https://www.americanimmigrationcouncil.org/sites/default/files/research/the_h-1b_visa_program_a_primer_on_the_program_and_its_impact_on_jobs_wages_and_the_economy.pdf;

National Foundation for American Policy, H-1B Visas by the Numbers: 2017-18, (2018),

available at https://nfap.com/wp-content/uploads/2018/04/H-1B-Visas-By-The-Number-FY-2017.NFAP-Policy-Brief.April-2018.pdf.

One negative consequence that would be expected to occur if H-1B workers could be paid less than their U.S. counterparts is that some employers would use H-1B workers as a low-cost labor alternative to displace U.S. workers—a result at odds with the purpose of the statutory scheme. A significant body of research on how H-1B workers are used by some firms suggests that is exactly what is occurring.

124

Anecdotal evidence also demonstrates that H-1B workers are used as a low-cost alternative to U.S. workers doing similar jobs. Media accounts of U.S. workers being required to train their H-1B replacements abound.

125

In these cases, evidence that U.S. workers were required to train their foreign replacements calls into question the rationale for bringing in H-1B workers to fill the respective skilled positions given that the positions were already filled. One likely motivation for the replacement of U.S. workers with H-1B workers in these cases is cost savings, as detailed in the reporting on the topic. When that is the case, the displacement of U.S. workers by H-1B workers provides further evidence that the current prevailing wage levels are set materially below what similarly employed U.S. workers earn. If prevailing wages were placed at the appropriate levels, the incentive to prefer H-1B workers over U.S. workers would be significantly diminished, and the practice of replacing U.S. workers with H-1B workers would likely not be as prevalent as the reporting suggests it is.

124

See, e.g.,

John Miano, Studies, Wages and Skill Levels for H-1B Computer Workers, 2005 Low Salaries for Low Skills, Center for Immigration Studies, (2007),

available at https://cis.org/Report/Wages-and-Skill-Levels-H1B-Computer-Workers-2005;

Patrick Thibodeau & Sharon Machlis,

U.S. law allows low H-1B wages; just look at Apple,

Computerworld, May 15, 2017,

available at https://www.computerworld.com/article/3195957/us-law-allows-low-h-1b-wages-just-look-at-apple.html;

Park, Haeyoun, “How Outsourcing Companies Are Gaming the Visa System,” The New York Times, November 10, 2015,

https://www.nytimes.com/interactive/2015/11/06/us/outsourcing-companies-dominate-h1b-visas.html;

National Research Council, Building a Workforce for the Information Economy, (2001),

available at https://www.nap.edu/catalog/9830/building-a-workforce-for-the-information-economy.

125

“Visa Abuses Harm American Workers,”

The New York Times,

June 16, 2016,

available at http://www.nytimes.com/interactive/opinion/editorialboard.html;

Julia Preston,

Pink Slips at Disney. But First, Training Foreign Replacements,

The New York Times, June 3, 2015,

available at https://www.nytimes.com/2015/06/04/us/last-task-after-layoff-at-disney-train-foreign-replacements.html;

Julia Preston,

Toys `R' Us Brings Temporary Foreign Workers to U.S. to Move Jobs Overseas,

The New York Times, September 29, 2015,

available at https://www.nytimes.com/2015/09/30/us/toys-r-us-brings-temporary-foreign-workers-to-us-to-move-jobs-overseas.html;

Michael Hiltzik,

A loophole in immigration law is costing thousands of American jobs,

Los Angeles Times, February 20, 2015,

available at https://www.latimes.com/business/hiltzik/la-fi-hiltzik-20150222-column.html;

Daisuke Wakabayashi & Nelson Schwarts,

Not Everyone in Tech Cheers Visa Program for Foreign Workers,

The New York Times, February 5, 2017,

available at https://www.nytimes.com/2017/02/05/business/h-1b-visa-tech-cheers-for-foreign-workers.html.

Another likely harmful consequence for U.S. workers in cases where H-1B workers can be paid below what comparable workers in the same labor market are paid is wage suppression. Academic research indicates that the influx of low-cost foreign labor into a labor market suppresses wages, and this effect increases significantly as the number of foreign workers increases.

126

In particular, some research suggests that a substantial increase in the labor supply due to the presence of foreign workers reduces the wages of the average U.S. worker by 3.2 percent, a rate that grew to 4.9 percent for college graduates.

127

More generally, though the economics literature is mixed on the effects of higher-skilled foreign workers on overall job creation, economic theory dictates that increasing the supply of something above similar demand growth lowers prices. As a result, while employing foreign workers at wages lower than their U.S. counterparts may increase firms' profitability, a result that is not surprising if current prevailing wage levels allow firms to replace domestic workers with lower-cost foreign workers, such a practice also results in lower overall wages, particularly in occupations where there are high concentrations of foreign workers. A significant body of research demonstrates that this phenomenon is likely occurring in the H-1B program.

126

George Borjas, Immigration Economics (2014). Borjas's research generally focuses on low-skilled immigrant labor, but the basic economic conclusions his research draws, principally that increases in labor supply lower wages, are applicable outside of the context of low skilled immigration.

127

George Borjas,

The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market,

The Quarterly Journal of Economics Vol. 118, No. 4 (Nov., 2003), pp. 1335-1374,

available at https://www.jstor.org/stable/25053941?seq=1.

For starters, H-1B workers make up about 10 percent of the IT labor force in the U.S.

128

In certain fields, including Software Developers, Applications (approximately 22 percent); Statisticians (approximately 22 percent); Computer Occupations, all other (approximately 18 percent); and Computer Systems Analysts (approximately 12 percent), H-1B workers likely make up an even higher percentage of the overall workforce.

129

This high prevalence of H-1B workers in these fields far exceeds the supply increase in the research described above that found substantial increases in the labor supply lower U.S. workers' earnings.

130

128

The Department estimated the share of H-1B workers in the IT sector by tallying the total number of computer occupation workers in the U.S., subtracting those workers that fill positions for which H-1B workers are ineligible, and dividing the total by the total number of H-1B workers likely working in computer occupations, based on data and reports issued by USCIS.

See

Bureau of Labor Statistics, Employment by detailed occupation,

https://www.bls.gov/emp/tables/emp-by-detailed-occupation.htm;

United States Citizenship and Immigration Services, H-1B Authorized-to-Work Population Estimate, (2020),

available at https://www.uscis.gov/sites/default/files/document/reports/USCIS%20H-1B%20Authorized%20to%20Work%20Report.pdf;

United States Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers: Fiscal Year 2019 Annual Report to Congress October 1, 2018-September 30, 2019, (2020),

available at https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf.

129

These findings come from an analysis of data on H-1B beneficiaries in FY19 from the United States Citizenship and Immigration Services and the 2017 Occupational Employment Statistics survey from the Bureau of Labor Statistics.

130

George Borjas,

The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market,

The Quarterly Journal of Economics Vol. 118, No. 4 (2003), pp. 1335-1374,

available at https://www.jstor.org/stable/25053941?seq=1.

One study compared winning and losing firms in the FY2006 and FY2007 lotteries for H-1B visas by matching administrative data on these lotteries to

administrative tax data on U.S. firms.

131

The study found that winning additional H-1B visas causes at most a moderate increase in firms' overall employment that does not usually exceed the number of H-1B workers hired, meaning that H-1Bs workers essentially crowd out firms' employment of other workers. It also found evidence that additional H-1B workers lead to lower average employee earnings and higher firm profits.

132

On the whole, the study concluded that the current results of the H-1B program run counter to the program's purpose, which is to allow for a limited number of workers with specialized skills to work in the U.S. while ensuring that U.S. workers' wages are not adversely affected.

131

Kirk Doran et al.,

The Effects of High-Skilled Immigration Policy on Firms: Evidence from Visa Lotteries,

(2016),

available at https://gspp.berkeley.edu/assets/uploads/research/pdf/h1b.pdf.

132

Supporting the argument that H-1B dependence increases firms' profit margins is evidence showing that firms that rely on H-1Bs can generate net profit margins of 20 percent to 25 percent in a sector. Normal expected margins are 6 percent to 8 percent.

See Immigration Reforms Needed to Protect Skilled American Workers: Hearing before the Senate Committee on the Judiciary

(March 17, 2015) (testimony of Ronil Hira, Associate Professor of Public Policy Rochester Institute of Technology, Rochester, NY),

available at https://www.judiciary.senate.gov/imo/media/doc/Hira%20Testimony.pdf.

Similarly, other studies have found that an influx of foreign computer science workers suppresses wages for computer science workers across the board.

133

These lower wages crowd out U.S. workers into non-computer science-based fields. In particular, the findings of these studies “imply that for every 100 foreign [computer science] workers that enter the US, between 33 to 61 native [computer science] workers are crowded out from computer science to other college graduate occupations.”

134

133

John Bound et al.,

Understanding the Economic Impact of the H-1B Program on the U.S.,

NBER Working Paper No. 23153 (2017),

available at https://www.nber.org/papers/w23153.pdf.

Additionally, some argue that H-1B visas are in such high demand because it is often cheaper to hire an H-1B employee than an American worker.

The Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744: Hearing before the Senate Committee on the Judiciary

(April 22, 2013) (testimony of Neeraj Gupta, CEO of Systems in Motion, to the Senate Judiciary Committee),

available at https://www.judiciary.senate.gov/imo/media/doc/04-22-13GuptaTestimony.pdf.

Furthermore some studies show that heavy users of H-1Bs workers pay their workers less than the median wages for the jobs they fill. Daniel Costa and Ronil Hira,

H-1B Visas and Prevailing Wage Levels,

Economic Policy Institute, (2020),

available at https://www.epi.org/publication/h-1b-visas-and-prevailing-wage-levels/.

134

John Bound et al.,

Understanding the Economic Impact of the H-1B Program on the U.S.,

NBER Working Paper No. 23153 (2017),

available at https://www.nber.org/papers/w23153.pdf.

The authors find that, in the absence of high-skilled immigrants (mostly H-1B workers), wages for U.S. computer scientists would have been 2.6 percent to 5.1 percent higher and employment in computer science for U.S. workers would have been 6.1 percent to 10.8 percent higher in 2001.

Other sources dispute the conclusion that existing prevailing wage levels disadvantage U.S. workers.

135

The Department acknowledges that H-1B workers can and do, in many instances, earn the same or more than similarly employed U.S. workers. However, the evidence described above appears to contradict that this claim is universal across firms and industries. The Department in its expertise views the studies, data, testimony, and anecdotal evidence showing displacement and lowered wages for U.S. workers in many cases as sufficient to demonstrate that the H-1B prevailing-wage levels are in need of reform, even if in other instances some firms do in fact pay H-1B workers wages comparable to those of U.S. workers.

135

See, e.g.,

David Bier,

100% of H-1B Employers Offer Average Market Wages—78% Offer More,

Cato Institute, (2020),

available at https://www.cato.org/blog/100-h-1b-employers-offer-average-market-wages-78-offer-more#:~:text=2020%209%3A37AM-,100%25%20of%20H%2D1B%20Employers%20Offer%20Average,Market%20Wages%E2%80%9478%25%20Offer%20More&text=The%20Economic%20Policy%20Institute%20(EPI,foreign%20workers%20in%20specialty%20occupations;Robert Atkinson, H-1B Visa Workers: Lower-Wage Substitute, or Higher-Wage Complement?,

Information Technology & Innovation Foundation, (2010),

available at https://itif.org/publications/2010/06/10/h-1b-visa-workers-lower-wage-substitute-or-higher-wage-complement.

Relatedly, some sources suggest that attracting foreign workers with specific, in-demand skills helps firms innovate and expand, driving growth and higher overall job creation, which in turn leads to more work opportunities for U.S. workers.

136

The Department does not dispute that allowing firms to access skilled foreign workers can lead to overall increases in innovation and economic activity, which can, in turn, benefit U.S. workers. However, H-1B workers' earnings data and other research indicate that, in many cases, the existing wage levels do not lead to these outcomes.

137

Even though some employers pay H-1B workers at rates comparable to what their U.S. counterparts are paid, that does not change the conclusion that the existing prevailing wage levels set a wage floor substantially below what similarly employed U.S. workers make in many instances, which allows some firms to use H-1B workers as a low-cost alternative to U.S. workers. And regardless, while the Department is certainly in favor of measures that increase economic growth and job creation, such outcomes are not the immediate objectives of the INA's wage protections, and, in any event, must be achieved in a manner consistent with the statute, which here requires the Department to focus on ensuring that the H-1B program does not impair wages and job opportunities of U.S. workers similarly employed. In short, the fact that some firms use the program as intended and pay H-1B workers the same or higher rates than similarly employed U.S. workers does not reduce the Department's need to act to ensure that this practice becomes more common, lessening the harms to U.S. workers caused by the existing prevailing wage levels.

136

See

American Immigration Council, The H-1B Visa Program: A Primer on the Program and Its Impact on Jobs, Wages, and the Economy, (2020),

available at https://www.americanimmigrationcouncil.org/sites/default/files/research/the_h-1b_visa_program_a_primer_on_the_program_and_its_impact_on_jobs_wages_and_the_economy.pdf;

National Foundation for American Policy, H-1B Visas by the Numbers: 2017-18, (2018),

available at https://nfap.com/wp-content/uploads/2018/04/H-1B-Visas-By-The-Number-FY-2017.NFAP-Policy-Brief.April-2018.pdf.

137

See, e.g.,

Sarah Pierce and Julia Gelatt,

Evolution of the H-1B: Latest Trends in a Program on the Brink of Reform,

Migration Policy Institute, (2018),

available at https://www.migrationpolicy.org/research/evolution-h-1b-latest-trends-program-brink-reform;

Center for Immigration Studies, H-1Bs: Still Not the Best and Brightest, (2008),

available at https://cis.org/Report/H1Bs-Still-Not-Best-and-Brightest.

Furthermore, given the annual numerical cap on some H-1B workers, a level that is frequently exceeded by the number of petitions each year, raising the prevailing wage levels to more accurately reflect what U.S. workers with levels of education, experience, and responsibility comparable to H-1B workers are paid should lead to more highly skilled H-1B nonimmigrants entering the U.S. labor market, and thus enhance the benefits of the program for U.S. workers identified by some studies. This is because, if firms are required to pay H-1B workers wages that accurately reflect what their U.S. counterparts earn, the firms would be more likely to sponsor foreign workers whose value exceeds this increased compensation. Given that workers' compensation tends to reflect the value provided from skills demanded by a firm, higher compensation should lead to workers with more specialized knowledge and expertise receiving the limited number of H-1B visas. Because this change in H-1B worker composition would limit applications to those with the skills necessary to command higher compensation, it would likely increase innovation and economic growth.

Some also argue that the presence of H-1B workers, even those with wages lower than similarly employed U.S. workers, raises income for U.S. workers because in some fields there is an apparent shortage of U.S. Science, Technology, Engineering, and Math (STEM) workers.

138

If there are no available U.S. workers to fill a position, then a firm's labor need goes unmet without substantial investment in worker recruitment and training. Accordingly, importing needed workers allows companies to innovate and grow, creating more work opportunities and higher-paying jobs for U.S. workers.

138

See, e.g., The Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744: Hearing before the Senate Committee on the Judiciary

(April 22, 2013) (testimony of Brad Smith, General Counsel of Microsoft),

available at https://www.judiciary.senate.gov/imo/media/doc/04-22-13BradSmithTestimony.pdf.

While there are usually fewer U.S. graduates in STEM fields than there are open positions in the fields, this simple observation tends to ignore key characteristics of STEM workers, especially those in IT. As some researchers have noted, in recent years, for every two students who graduate from a U.S. university with a STEM degree, only one is hired into a STEM job.

139

This finding, along with other research on U.S. workers' skills,

140

calls into question, in some cases, the scarcity of U.S. STEM workers that some claim drive employers' use of H-1B workers.

141

139

Questions for the Record submitted by Ronil Hira, Associate Professor of Public Policy Rochester Institute of Technology, Rochester, NY, to the Senate Judiciary Committee, April 2013,

https://www.judiciary.senate.gov/imo/media/doc/042213QFRs-Hira.pdf.

140

The Bureau of Labor Statistics studied the STEM skills gap and found varied results depending on geography, field, and other factors. Though some fields clearly face a shortage of qualified workers, this shortage is far from universal.

See

Yi Xue & Richard C. Larson,

STEM crisis or STEM surplus? Yes and yes,

Monthly Labor Review, U.S. Bureau of Labor Statistics, (2015),

available at https://doi.org/10.21916/mlr.2015.14.

141

Benedikt Herz & Thijs van Rens,

Accounting for Mismatch Unemployment,

IZA, Discussion Paper No. 8884 (2015),

available at http://ftp.iza.org/dp8884.pdf;

Thijs van Rens, The Skills Gap: Is it a myth? Social Market Foundation and Competitive Advantage in the Global Economy, (2015),

available at http://www.smf.co.uk/wp-content/uploads/2015/12/SMF-CAGE-Policy-Briefing-Skills-Gap-Myth-Final.pdf.

As noted above, there are high concentrations of H-1B workers in many STEM-related fields. The high number of H-1B workers in fields for which U.S. workers study but in which they either choose not to work or cannot find jobs suggests that H-1B workers are not being used where no domestic workers can be found for the market rate, but rather are being used to fill jobs with workers paid below the market rate.

142

Further, while the wage effects from a lower cost labor alternative may be minimal where the alternative only makes up a very small share of the labor pool, the effects can become negative and more pronounced as concentrations of foreign workers increase.

143

Thus, the fact that 10 percent of the IT workforce consists of H-1B workers, in combination with the fact that many U.S. IT graduates do not work in IT jobs, supports the notion that firms use H-1B workers as low-cost labor, and that this practice likely has a substantial harmful effect on U.S. workers. Moreover, insofar as the H-1B program suppresses wages for U.S. IT workers, it discourages U.S. students from entering the IT field in the first place, thus perpetuating the “skills gap.” Basic economic theory dictates that more U.S. students would likely enter the IT field if IT jobs paid more.

142

Benedikt Herz & Thijs van Rens,

Accounting for Mismatch Unemployment,

IZA, Discussion Paper No. 8884 (2015),

available at http://ftp.iza.org/dp8884.pdf;

Thijs van Rens,

The Skills Gap: Is it a myth?,

Social Market Foundation and Competitive Advantage in the Global Economy, (2015),

available at http://www.smf.co.uk/wp-content/uploads/2015/12/SMF-CAGE-Policy-Briefing-Skills-Gap-Myth-Final.pdf.

143

George Borjas,

The Labor Demand Curve Is Downward Sloping: Reexamining the Impact of Immigration on the Labor Market,

The Quarterly Journal of Economics Vol. 118, No. 4 (2003), pp. 1335-1374,

available at https://www.jstor.org/stable/25053941?seq=1.

In short, contrary to the H-1B program's goals, prevailing wage levels that in many instances do not accurately reflect earning levels of comparable U.S. workers have permitted some firms to displace rather than supplement U.S. workers with H-1B workers. While allowing firms to access high-skilled workers to fill specialized positions can help U.S. workers' job opportunities in some instances, the benefits of this policy diminish significantly when the prevailing wage levels do not accurately reflect the wages of similarly employed workers in the U.S. labor market. The resulting distortions from a poor calculation of the prevailing wage allow some firms to replace qualified U.S. workers with lower-cost foreign workers, which is counter to the purpose of the INA's wage protections, and also lead to wage suppression for those U.S. workers who remain employed.

That the existing prevailing wage levels likely do not reflect actual market wage rates in many cases is further demonstrated by the fact that some firms already pay wages to their H-1B workers that are well above the applicable prevailing wage level. For example, Microsoft's General Counsel testified before the Senate Judiciary Committee in 2013 that at the company's headquarters, software development engineers had a starting salary that was typically more than 36 percent above the Level I wage, meaning they were being paid wages slightly above the Department's Level III wage at that time.

144

More recently, in Q3:2020, the Department's data show that many of the largest users of the H-1B program pay in many cases wages well over 20 percent in excess of the prevailing wage rate set by the Department for the workers in question.

145

Table 2 below shows this trend with respect to top H-1B employers.

144

See, e.g., The Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744: Hearing before the Senate Committee on the Judiciary

(April 22, 2013) (testimony of Brad Smith, General Counsel of Microsoft),

available at https://www.judiciary.senate.gov/imo/media/doc/04-22-13BradSmithTestimony.pdf.

145

“Top 20 LCA/H-1B Employers based on Certifications, as of 6/30/2020,” Employment and Training Administration, accessed August 2020.

Table 1—Top 20 H-1B Employers by LCAs Filed: Average Rate at Which the Wage Offered Exceeds the Prevailing Wage

Top employers

Total LCAs filed/worker positions

requested

Average rate at which the wage offered exceeds

prevailing

wage

(percent)

Percentage of worker

positions

where wage

offered

exceeds

prevailing

wage by over

20 percent

Qualcomm Technologies, Inc

701/38,533

5.74

9.70

Infosys Limited

7,615/21,627

6.53

11.08

Cognizant Technology Solutions US Corp

20,192/20,192

0.24

0.32

Deloitte Consulting, LLP

7,316/16,567

61.62

44.16

Amazon.com Services, LLC

9,175/12,560

93.93

68.38

Oracle America, Inc

543/12,269

0.48

0.55

Tata Consultancy Services Limited

8,595/9,388

2.95

4.90

Zensar Technologies, Inc

130/9,207

1.03

0.77

NVIDIA Corporation

396/8,977

4.69

8.33

Google, LLC

8,669/8,669

71.73

58.60

Ernst & Young U.S., LLP

8,170/8,170

88.59

71.79

Facebook, Inc

3,583/7,674

24.71

47.92

Cisco Systems, Inc

925/7,121

8.88

16.65

Qualcomm Atheros, Inc

115/7,110

6.05

15.65

Apple, Inc

2,983/6,889

117.89

61.25

Microsoft Corporation

6,544/6,631

31.48

68.61

Western Digital Technologies, Inc

267/6,621

12.30

21.72

ServiceNow, Inc

359/6,383

0.00

Computer Sciences Corporation

231/6,034

0.44

1.30

Kforce, Inc

584/5,786

1.16

1.71

Percent of National LCA/H-1B Totals

19.2%/31.6%

Simple Average for the Top 20

27.02

25.67

Source: “Top 20 LCA/H-1B Employers based on Certifications, as of 6/30/2020,” Employment and Training Administration, accessed August 2020.

If the Department's current prevailing wage levels accurately reflected earnings for similarly employed U.S. workers, then these major differences between actual wages paid to some H-1B workers and the otherwise applicable prevailing wage levels would not be as common. As noted previously, the INA takes a belt-and-suspenders approach to protecting U.S. workers' wages. Employers must pay the higher of the actual wage they pay to similarly employed workers or the prevailing wage rate set by the Department. Both possible wage rates generally should approximate the going wage for workers with similar qualifications and performing the same types of job duties in a given labor market as H-1B workers. It is therefore a reasonable assumption that, if both of the INA's wage safeguards were working properly, the wage rates they produce would, at least in many cases, be similar. Where the Department's otherwise applicable wage rate is significantly below the rates actually being paid by employers in a given labor market, it gives rise to an inference that the Department's current wage rates, based on statistical data and assumptions about the skill levels of U.S. workers, are not reflective of the types of wages that workers similarly employed to H-1B workers can and likely do command in a given labor market. There is a mismatch between what the Department's prevailing wage structure says the relevant cohort of U.S. workers are or should be making and what employers are likely actually paying such workers, as demonstrated by the actual wage they are paying H-1B workers. Put another way, when many of the heaviest users of the H-1B program pay wages well above the prevailing wage, it suggests that the prevailing wages are too low, and thus can be abused by other firms to replace U.S. workers with lower-wage foreign workers in cases where those firms do not have similarly employed workers on their jobsites whose actual wages would be used to set the wage for H-1B workers.

In the PERM programs, recent Employment and Training Administration data shows that the heaviest users of the programs also typically pay wages well above the prevailing wage levels. Whereas the simple average of the top 20 employers' wage offers over the prevailing wage is 27.02 percent for H-1B, it is 16.77 percent for PERM. And while the simple average of cases with wages more than 20 percent above the prevailing wage is 25.67 percent for H-1B, it is 30.59 percent for PERM, as shown in Table 3.

146

“Top 20 LCA/H-1B Employers based on Certifications, as of 6/30/2020,” Employment and Training Administration, accessed August 2020; “Top 20 PERM Employers based on Certifications, as of 6/30/2020,” Employment and Training Administration, accessed August 2020.

Table 2—Top 20 PERM Employers Average of Wage Offered Over Prevailing Wage

PERM employers

Top twenty employers

Total

applications

certified

Average rate at which the wage offered exceeds

prevailing

wage

(percent)

Percentage of certified cases where wage offered exceeds

prevailing

wage by over 20 percent

Amazon.com Services, Inc

2,389

3.27

6.86

Google LLC

2,167

19.50

34.06

Facebook, Inc

1,204

40.57

68.11

Microsoft Corporation

1,114

27.71

48.56

Intel Corporation

939

2.08

2.88

Tata Consultancy Services Limited

923

0.00

Cognizant Technology Solutions US Corporation

808

0.00

Apple, Inc

697

37.85

69.30

HCL America, Inc

557

0.01

0.00

Capgemini America, Inc

502

6.12

7.97

Ernst Young U.S. LLP

426

13.71

27.00

Cisco Systems

325

9.95

19.69

Amazon Web Services, Inc

316

2.81

5.70

Deloitte Consulting LLP

303

39.29

67.99

LinkedIn Corporation

282

40.74

72.34

Nvidia Corporation

276

26.53

56.16

Salesforce.com

265

32.72

67.17

Oracle America, Inc

263

14.96

28.52

VMWare, Inc

258

12.43

21.71

Qualcomm Technologies

254

5.18

7.87

Percent of National PERM Totals

21.6%

Simple Average for the Top 20

16.77

30.59

Source: “Top 20 PERM Employers based on Certifications, as of 6/30/2020,” Employment and Training Administration, accessed August 2020.

Beyond the similarities between wages offered above the prevailing wage levels in the H-1B and PERM programs, the Department notes that the volume of research and literature on the wage effects of the PERM programs is scant compared to that on the wage effects of the H-1B program. That said, there are reasonable grounds to conclude that adverse wage effects similar to those found in the H-1B program are also caused in some instances by the employment of EB-2 and EB-3 immigrants.

Critically, the PERM programs and the H-1B program are closely linked in both how they are regulated and used by employers. Unlike most nonimmigrant visas, H-1B visas are unusual in that they are “dual intent” visas, meaning under the INA H-1B workers can enter the U.S. on a temporary status while also seeking to adjust status to that of lawful permanent residents.

147

One of the most common pathways by which H-1B visa holders obtain lawful permanent resident status is through employment-based green cards, and in particular EB-2 and EB-3 visas.

148

USCIS has estimated that over 80 percent of all H-1B visa holders who adjust to lawful permanent resident status do so through an employment-based green card.

149

This is reflected in data on the PERM programs. In recent years, more than 80 percent of all individuals granted lawful permanent residence in the EB-2 and EB-3 classifications have been aliens adjusting status, meaning they were already present in the U.S. on some kind of nonimmigrant status.

150

Given that the H-1B program is the largest temporary visa program in the U.S. and is one of the few that allows for dual intent, it is a reasonable assumption that the vast majority of the EB-2 and EB-3 adjustment of status cases are for H-1B workers. This is corroborated by the Department's own data, which shows that, in recent years, approximately 70 percent of all PERM labor certification applications filed with the Department have been for H-1B nonimmigrants.

151

147

dePape

Trinity Health Sys., Inc.,

242 F. Supp. 2d 585, 593 (N.D. Iowa 2003).

148

See

Sadikshya Nepal,

The Convoluted Pathway from H-1B to Permanent Residency: A Primer,

Bipartisan Policy Center (2020); Congressional Research Service, The Employment-Based Immigration Backlog (2020) (“A primary pathway to acquire an employment-based green card is by working in the United States on an H-1B visa for specialty occupation workers, getting sponsored for a green card by a U.S. employer, and then adjusting status when a green card becomes available.”).

149

U.S. Citizenship and Immigration Services, H-1B Authorized-to-Work Population Estimate (2020).

150

See

https://www.dhs.gov/immigration-statistics/yearbook/2017/table7

151

Office of Foreign Labor Certification, Permanent Labor Certification Program—Selected Statistics, FY 19,

available at

https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/PERM_Selected_Statistics_FY2019_Q4.pdf

Because of how many H-1B visa holders apply for EB-2 and EB-3 classifications, Congress has repeatedly adapted the INA to account for the close connection between the programs. For example, while H-1B nonimmigrants are generally required to depart the U.S. after a maximum of six years of temporary employment, Congress has created an exception that allows H-1B nonimmigrants who are beneficiaries of PERM labor certification applications with the Department, or who are beneficiaries of petitions for an employment-based immigrant visa with DHS that have been pending for longer than a year, be exempt from the 6-year period of authorized admission limitation if certain requirements are

met.

152

Similarly, as noted above, Congress established the INA's prevailing wage requirements in section 212(p) with specific reference to the fact that they would apply in both the H-1B and PERM programs.

153

152

See

Public Law 107-273, 11030A(a), 116 Stat. 1836 (2002).

153

See

144 Cong. Rec. S12741, S12756 (explaining that 8 U.S.C. 1182(p) “spells out how [the prevailing] wage is to be calculated in the context of both the H-1B program and the permanent employment program in two circumstances.”).

The various features of the statutory framework governing the programs, working in combination, have further tightened the relationship between them. In particular, because H-1B workers can have dual intent and, if they have a pending petition for an employment-based green card, can remain in the U.S. beyond the 6-year period of authorized stay limitation, many workers for whom an employer has filed a PERM labor certification application are already working for that same employer on in H-1B status.

154

And because the method by which employment-based green cards are allocated can result in significant delays between when an alien is approved for a green card and when the green card is actually issued, the period during which a worker can, in some sense, have one foot in each program, is often protracted.

155

154

See

Congressional Research Service, The Employment-Based Immigration Backlog (2020).

155

See

8 U.S.C. 1152(a)(2); Abigail Hauslohner,

The employment green card backlog tops 800,000, most of them Indian. A solution is elusive,

Washington Post (December 17, 2019),

available at

https://www.washingtonpost.com/immigration/the-employment-green-card-backlog-tops-800000-most-of-them-indian-a-solution-is-elusive/2019/12/17/55def1da-072f-11ea-8292-c46ee8cb3dce_story.html

; U.S. Department of State, Visa Bulletin For September 2020,

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-september-2020.html

This system results in an immense demographic overlap between the H-1B and PERM programs. For instance, 71.7 percent of all H-1B petitions approved in FY2019 were for individuals born in India.

156

Similarly, the vast majority of individuals waiting for adjudication of EB-2- and EB-3-based adjustment of status applications are Indian nationals.

157

Relatedly, LCAs and applications for PERM labor certifications often are for job opportunities in the same occupations. Data from the Department's OFLC shows that of the ten most common occupations in which H-1B workers are employed, seven are also among the ten most common occupations in which PERM workers are employed.

156

U.S. Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers Fiscal Year 2019 Annual Report to Congress October 1, 2018-September 30, 2019, (2020),

available at

https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf

, (showing 66 percent of H-1B petitions approved in FY2019 were for computer-related occupations).

157

Congressional Research Service, The Employment-Based Immigration Backlog (2020).

The upshot is that the H-1B and PERM programs are, in a variety of ways, inextricably conjoined. The rules governing them and how employers use them mean that, in many instances, workers in the PERM programs and workers in the H-1B program are often the exact same workers doing the same jobs in the same occupations for the same employers. And their wages are set based on the same methodology. It is therefore a reasonable inference that evidence that the Department's current wage levels under the four-tier structure result in inappropriately low wage rates in some instances for H-1B workers also holds true for the PERM programs.

3. Identifying the Appropriate Entry Level Wage

Having determined that the existing wage levels are not set based on the wages paid to U.S. workers with the education, experience, and levels of supervision comparable to those of similarly employed foreign workers and are likely harming the wages and job opportunities of U.S. workers, the Department must assess how the wage levels should be adjusted. While the INA provides the relevant factors and general framework by which the wage levels are to be set, it leaves the precise manner in which this is accomplished, including the types of data and evidence to be used and how such data and evidence is weighed, to the Department's discretion and expert judgment. In exercising that discretion, the Department's decision on how to adjust the wage levels is informed by the statute's purpose of protecting the wages and job opportunities of U.S. workers. This means the Department has focused its analysis on those areas where the risk to U.S workers is most acute, taken into account how the foreign labor programs are actually used by employers, and, where appropriate, resolved doubts in favor of refining the wage calculations so as to eliminate to the greatest extent reasonably possible adverse effects on U.S. workers caused by the employment of foreign workers.

For the reasons explained above, the Department has determined BLS's OES survey remains the best source of wage data to determine prevailing wages in the H-1B, H-1B1, E-3, and PERM programs. However, because the OES survey does not capture the actual skills or responsibilities of the workers whose wages are being reported, it is appropriate for the Department to rely on data outside the OES survey to establish the wage levels applicable to these immigrant and nonimmigrant visa programs, which encompass varying populations working in hundreds of different occupational classifications. The Department has therefore undertaken a comprehensive analysis concerning the types of U.S. workers in the most common occupations in the programs that have comparable levels of education, experience, and responsibility to the foreign workers in these programs, and estimated how much those U.S. workers earn. To identify the proper comparators, the Department looked not only to the INA itself, which sets the minimum qualifications foreign workers in the H-1B, H-1B1, and E-3 programs must have to qualify for these visas, but, in order to draw a more accurate comparison, demographic data about the types of workers who actually work in the programs as well.

The Department has concluded, in its discretion, that the Level I wage should be established based on the wages paid to workers in those occupations that make up a substantial majority of the applications filed in the H-1B, H-1B1, E-3, and PERM programs. This ensures that the Department appropriately takes into account the size and breadth of the programs covered by the four-tier wage structure by giving special attention to those areas where the risk to U.S. workers' wages and job opportunities is most acute. To make this determination, the Department has identified what it considers to be an analytically appropriate proxy for approved entry-level workers for the specialty occupation and EB-2 programs; consulted various, authoritative sources to determine what similarly qualified workers in the U.S. who fit this profile are paid; and identified where within the OES wage distribution these U.S. workers' wages fall. That point in the distribution, which the Department has estimated to be at approximately the 45th percentile, serves as the appropriate entry-level wage for purposes of the Department's four-tier wage structure.

In order to reach this estimate, the Department first identified an analytically usable definition of the prototypical entry-level H-1B and EB-2 workers. More specifically, the Department identified the education and experience typically possessed by such workers, which, in turn, was used to identify the wages paid to U.S. workers with similar levels of

experience and education. Looking to the wages of such U.S. workers to adjust the entry-level wage paid to foreign workers is highly consistent with the statutory scheme.

After consulting the statutory criteria for who qualifies for the relevant visa classifications, as well as the demographic characteristics of actual H-1B nonimmigrants, the Department has determined that an individual with a master's degree and little-to-no work experience is the appropriate comparator for entry-level workers in the Department's PERM and specialty occupation programs for purposes of estimating the percentile at which such workers' wages fall within the OES wage distribution.

To begin with, the statutory criteria for who can qualify as an EB-2 worker provides a clear, analytically useable definition of the minimum qualifications workers within that classification must possess. Even the least experienced individuals within the EB-2 classification are likely to have at least a master's degree or its equivalent.

158

Possession of an advanced degree is thus a meaningful baseline with which to describe entry-level workers in the EB-2 classification.

158

See

8 U.S.C. 1153(b)(2)(A) (“Visas shall be made available . . . to qualified immigrants who are members of the professions holding advanced degrees or their equivalent . . .”).

As noted above, the baseline qualifications needed to obtain entry as an H-1B worker are different. An individual with a bachelor's degree in a specific specialty, or its equivalent, may qualify for an H-1B visa; a master's degree is not a prerequisite.

159

However, the bachelor's degree or equivalent must be in a specific specialty. A generalized bachelor's degree is insufficient to satisfy the requirement that H-1B workers possess highly specialized knowledge.

160

Further, the statute requires that the individual be working in a job that requires that application of “highly specialized knowledge.”

161

Again, this means that for the H-1B program the possession of a bachelor's degree is not the baseline qualification criterion for admission. Something more is needed. The ultimate inquiry rests also on whether the individual can and will be performing work requiring highly specialized knowledge.

159

8 U.S.C. 1184(i).

160

See Chung Song Ja Corp.

U.S. Citizenship & Immigration Servs.,

96 F. Supp. 3d 1191, 1197-98 (W.D. Wash. 2015).

161

8 U.S.C. 1184(i).

As with aliens in the EB-2 classification, looking to the earnings of individuals with a master's degree provides an appropriate and analytically useable proxy for purposes of analyzing the wages of typical, entry-level workers within the H-1B program. For one thing, master's degree programs are, generally speaking, more specialized courses of study than bachelor's degree programs. Thus, while the fact that an individual possesses a bachelor's degree does not necessarily suggest one way or another whether the individual possesses the kind of specialized knowledge required of H-1B workers, the possession of a master's degree is significantly more likely to indicate some form of specialization. Although a master's degree alone does not automatically mean an individual will qualify for an H-1B visa, possession of a master's degree—something that is surveyed for in a variety of wage surveys—is thus a better proxy for specialized knowledge than is possession of a bachelor's degree for purposes of the Department's analysis. This is because, while possession of a bachelor's degree is also commonly surveyed for, mere possession of a bachelor's degree is not nearly as reliable an indicator that the degree holder possesses specialized knowledge.

Further, the demographic characteristics of H-1B workers suggests that many entry-level workers in the program are master's degree holders with limited work experience. A review of data from USCIS about the characteristics of individuals granted H-1B visas in fiscal years 2017, 2018, and 2019 indicates that H-1B workers with master's degrees tend to be younger and less highly compensated than H-1B workers with bachelor's degrees. On average, individuals with master's degrees in the program are approximately 30 years old, whereas bachelor's degree holders are, on average, 32 years old. This suggests that, while possessing a more advanced degree, master's degree holders in the program are likely to have less relevant work experience than their bachelor's degree counterparts.

162

Relatedly, H-1B master's degree holders make, based on a simple average, $86,927, whereas bachelor's degree holders make on average $88,565.

163

Given that differences in skills and experience often explain differences in wages, this gap in average earnings and age suggests that, while possessing a more advanced degree, master's degree holders in the H-1B program tend to be less skilled and experienced—and are therefore more likely to enter the program as entry-level workers—than are bachelor's degree holders.

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Age is a common proxy for potential work experience.

See, e.g.,

Rebecca Chenevert & Danial Litwok,

Acquiring Work Experience with age

, United States Census Bureau, (2013)

available at

https://www.census.gov/newsroom/blogs/random-samplings/2013/02/acquiring-work-experience-with-age.html

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This analysis is based on data from U.S. Citizenship and Immigration Services about the demographic characteristics of H-1B workers.

164

Elka Torpey, Same occupation, different pay: How wages vary, Bureau of Labor Statistics (2015),

available at

https://www.bls.gov/careeroutlook/2015/article/wage-differences.htm

This conclusion is further bolstered by the fact that master's degree holders have, in recent years, been the largest educational cohort within the program. In FY2019, for instance, 54 percent of the beneficiaries of approved H-1B petitions had a master's degree—whereas only 36 percent of beneficiaries had only a bachelor's degree.

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These facts, in combination with the age and earnings profiles of master's degree holders in the program, strongly suggest that a significant number of entry-level H-1B workers are individuals with a master's degree and very limited work experience.

165

U.S. Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers Fiscal Year 2019 Annual Report to Congress October 1, 2018-September 30, 2019, (2020),

available at

https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf

The Department notes that its description of individuals with master's degrees and little-to-no work experience as appropriate comparators for entry-level workers in the Department's foreign labor programs for purposes of setting the proper Level I wage is not inconsistent with how the Department makes prevailing wage determinations under its 2009 Guidance. Many job opportunities that result in a Level I wage determination of course do not require a master's degree as the minimum qualification for the position. The Department is not changing that aspect of its guidance. Rather, the Department has decided, for the reasons given above, to rely on master's degree holders as an analytically useable proxy for the types of workers who actually fill many entry-level positions in the H-1B and PERM programs and who likely satisfy the key, baseline statutory qualification requirements for entry into the programs—namely the possession of specialized knowledge or an advanced degree—in order to identify where the first of four levels should fall along the OES wage distribution. This reflects how employers actually fill jobs for which workers are sought, not necessarily how job descriptions are used to assign wage levels for each individual job opportunity to provide a prevailing wage determination at the

beginning of the labor certification process, which often occurs before the identity and actual qualifications of the worker who will fill the position are known. Giving some weight to the actual characteristics of entry-level workers in the programs furthers the purpose of the statute, which is designed to ensure that foreign workers make at least as much as similarly employed U.S. workers with comparable levels of education, experience, and responsibility.

Further, practice in the H-1B program shows that a significant number of H-1B workers are placed at the first wage level, which demonstrates that the Department's focus on specialty occupation requirements in setting an entry-level wage is also consistent with how workers are presently classified for prevailing wage purposes under the 2009 Guidance. In FY2019, 14.4 percent of all worker positions on LCAs were for entry-level positions. This cohort includes LCAs filed for some of the most common H-1B occupations, including Software Developers, 19.4 percent of which were placed at the first wage level; Computers Systems Analysts, 4.8 percent of which were placed at the first wage level; and Computer Occupations, 7 percent of which were placed at the first wage level. As discussed previously, these occupations, as described in the OOH, likely include some workers at the lower end of the OES distribution who are not performing work that would fall within the INA's definition of “specialty occupation.” Thus, many workers in the H-1B program that have master's degrees or some other qualification that satisfies the INA's baseline, specialized knowledge requirement—a level of expertise that makes them more highly skilled than a portion of workers at the bottom end of the OES distribution for many occupations—also work in positions that fit within the entry-level classification as currently administered by the Department under its 2009 Guidance.

To determine the wages typically made by individuals having comparable levels of education, experience, and responsibility to the prototypical entry-level H-1B and EB-2 workers and working in the most common H-1B and PERM occupations, the Department consulted a variety of data sources, most importantly wage data on individuals with master's degrees or higher and limited years of work experience from the 2016, 2017, and 2018 Current Population Surveys (CPS)

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conducted by the U.S. Census Bureau, and data on the salaries of recent graduates of master's degree programs in STEM occupations garnered from surveys conducted by the National Science Foundation (NSF) in 2015 and 2017. Both of these surveys represent the highest standards of data collection and analysis performed by the federal government. Both surveys have large sample sizes that have been methodically collected and are consistently used not just across the federal government for purposes of analysis and policymaking, but by academia and the broader public as well.

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The Current Population Survey (CPS), sponsored jointly by the U.S. Census Bureau and BLS, is the primary source of labor force statistics for the population of the U.S.

See

United States Census Bureau, Current Population Survey, available at

https://www.census.gov/programs-surveys/cps.html

In the case of the CPS survey, the Department used a wage prediction model to identify the wages an individual with a master's degree or higher and little-to-no work experience (based on age) would be expected to make and matched the predicted wage with the corresponding point on the OES wage distribution. Using the NSF surveys, the Department calculated the average wage of individuals who recently graduated from STEM master's degree programs and matched the average wage against the corresponding point on the OES distribution.

These analyses located three points within the OES wage distribution at which the wages of U.S. workers with similar levels of education and experience to the prototypical entry-level workers in specialty occupations and the EB-2 program are likely to fall. In particular, the 2015 NSF survey data indicate that workers in some of the most common H-1B and PERM occupations with a master's degree and little-to-no relevant work experience are likely to make wages at or near the 49th percentile of the OES distribution.

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The 2017 NSF survey suggests that these workers are likely to make wages at or near the 46th percentile of the OES distribution. On the low end, the CPS data suggest that such individuals make wages at or near the 32nd percentile.

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For the CPS data, the Department looked at the wages of workers in all occupations that account for 1 percent or more of the total H-1B population. These occupations also account for the majority of PERM workers. For the NSF data the Department examined the wages of workers in 11 of the most common (in the top 17) occupational codes for H-1B workers that were convertible to the occupational code convention of the NSF, which account for approximately 63 percent of all H-1B workers, according to data from USCIS.

The Department thus identified a range within the OES data wherein fall the wages of workers who, while being relatively junior within their occupations, clearly possess the kinds of specialized education and/or experience that the vast majority of foreign workers covered by the Department's wage structure are, at a minimum, required to have.

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Put another way, through an assessment of the experience and education generally possessed by some of the least skilled and least experienced H-1B and EB-2 workers—workers who are likely entry-level workers within their respective programs—the Department determined what U.S. workers with similar levels of education and experience are likely paid. Accordingly, it is appropriate for the wages paid to such U.S. workers to govern the entry-level prevailing wage paid under the Department's wage structure.

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The Department notes again by way of clarification that it is not suggesting that possession of a master's degree is required to work in a specialty occupation. Rather, as explained above, possession of a master's degree by someone with little-to-no relevant work experience is being employed as a useable proxy, for analytical purposes, of the level of education and experience that approximates the baseline level of specialized knowledge needed to work in the H-1B and EB-2 programs and that many entry-level workers in those programs actually possess.

169

See

8 U.S.C. 1182(a)(5)(A) (requiring the Secretary to certify that the employment of immigrants seeking EB-2 classification “will not adversely affect the

wages

and working conditions

of workers in the United States similarly employed

) (emphasis added); 8 U.S.C. 1182(n)(1)(A)(i) (requiring prospective H-1B employers to offer and pay at least the actual wage level or “the prevailing wage level for the occupational classification in the area of employment”).

Translating the identified range into an entry-level wage for the Department's use in the H-1B and PERM programs could be accomplished in a number of ways. One option would be to simply calculate the average wage of all workers that fall within the range, meaning those workers whose reported wage falls between the 32nd and 49th percentiles, which would place the entry-level wage at just above the 40th percentile. An alternative would be to identify a subset of wages within the range—either on the lower end or the higher end of the range—and calculate the average wage paid to workers within such subset. Because of the greater suitability of the NSF data for the Department's purposes, likely distortions in the wage data of both surveys caused by the presence of lower-paid foreign workers in the relevant labor markets, and the purposes of the INA's wage protections, the Department has decided that the most appropriate course is to set the entry-level wage by calculating the average of a subset of the data located at the higher end of the identified wage range. This

results in the entry-level wage being placed at approximately the 45th percentile.

As between the two data sources and the manner in which they were analyzed, the NSF data are better tailored to the Department's purposes in identifying an entry-level wage for the H-1B program. The NSF surveys provide data on the wages of individuals with degrees directly relevant to the specialized occupations in which they are working, namely degrees in STEM fields. By contrast, the CPS data only show whether a person does or does not have a master's degree, and does not identify what field the master's degree or the individual's undergraduate course of study was in. It is therefore likely that some of the wage data relied on in generating the CPS estimate were based on the earnings of individuals who possess degrees not directly related to the occupation in which they work. Given that the CPS data used only accounted for persons with little-to-no experience, such individuals would therefore be unlikely to have the qualifications needed to work in a “specialty occupation,” as that term is defined in the INA. Having neither a specialized degree nor experience, and therefore lacking in specialized skills or expertise, at least with respect to the occupations in which they work, such individuals would not qualify as similarly employed to even the least skilled H-1B workers and are thus not appropriate comparators for identifying an entry-level wage in the H-1B program. Because of these workers' relative lack of skill and expertise, they are likely to command lower wages, and thus decrease the predicted wage below what would be an appropriate entry-level wage for the Department's foreign labor programs.

Relatedly, the Department's method for approximating experience in the CPS data is also not as closely tailored to the goal of determining what U.S. workers similarly employed to the prototypical entry-level H-1B and EB-2 workers are paid as is the NSF data. The CPS analysis relied on potential experience as a proxy for actual experience, which was calculated using a standard formula of subtracting from individuals' ages their years of education and six, based on the common assumption that most individuals start their education at the age of six.

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While a standard measure for potential experience, this method of approximation is imprecise because it shows each individual of the same age and education level as having the same level of work experience. In reality, such individuals may vary significantly in their levels of experience.

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For example, under this metric, a 30 year old individual with 18 years' worth of education would be counted as having six years of work experience.

For one thing, the approximation does not take into account the possibility of a worker temporarily exiting the workforce, and would count the time spent outside the workforce as work experience. It also does not account for gaps between when a person received his or her bachelor's degree and when he or she enrolled in a master's degree program. In such cases, the work experience captured by the proxy of potential experience may thus not be directly relevant to the work a person performs after he or she graduates from a master's degree program since in some cases the work experience in question was likely acquired before the individual enrolled in a master's degree program. In consequence, the sample used in the CPS analysis almost certainly includes some individuals who have no relevant experience in the specialized occupations in which they are working, which likely decreases the wage estimate calculated using the CPS data and makes it a less precise and reliable estimation of the wages of U.S. workers with similar levels of education and experience to the prototypical, entry-level H-1B and EB-2 workers. In other words, the CPS data allows for only a rough approximation of experience—a key factor the Department must take into account in adjusting the prevailing wage levels. This, in combination with the fact that some workers contained within the CPS dataset likely also lack specialized education relevant to the occupations in which they work, means that CPS data is, in some degree, distorted by wage earners who should be discounted in identifying the appropriate entry-level wage because they likely possess neither the type of specialized experience nor the education in their field that is comparable to that possessed by entry-level H-1B and EB-2 workers.

The NSF survey data, by contrast, are uniquely suited to the Department's purposes. The NSF surveys in 2015 and 2017 capture wage data about exactly the sort of workers the Department has determined serve as the appropriate comparators for entry-level H-1B and EB-2 workers. They surveyed individuals with master's degrees in STEM fields who are working in STEM occupations, including some of the most common H-1B and PERM occupations, and who are approximately three years or less out of their master's degree programs. In other words, the NSF surveys report wage data for individuals with specialized knowledge and expertise working in the occupations in which H-1B and PERM workers are most often employed and who are relatively junior within their respective occupations. The NSF data therefore provide a more accurate wage profile of workers similarly employed to entry-level H-1B and EB-2 workers. While both data sources are useful in helping determine a wage range for entry-level H-1B and PERM workers, of the two, the NSF surveys provide information more relevant to the Department's assessment of what is the appropriate entry-level wage. Therefore, the Department's analysis relies more on the NSF surveys. This suggests that the entry-level wage should be placed higher up in the identified wage range given that is where the NSF survey results fall.

Beyond the relative weight of each data source, the Department also takes into account in identifying the appropriate entry-level wage the fact that both sources are likely distorted to some degree by the presence, in both the surveyed population and the labor market as a whole, of the very foreign workers the Department has determined are, in some instances, paid wages below the market rate. As noted above, various studies and data demonstrate that some H-1B workers are paid wages substantially below the wages paid to their U.S. counterparts, and that this has a suppressive effect on the wages of U.S. workers. Further, these adverse effects are most likely to occur and be severe in occupations with higher concentrations of foreign workers. It is therefore relevant to how the Department weighs the data that many of the occupations examined in the analyses of the NSF and CPS datasets have very high concentrations of H-1B workers. As noted previously, H-1B nonimmigrants make up about 10 percent of the total IT labor force in the U.S.

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In certain fields, including

software developers, applications (22 percent); statisticians (22 percent); computer occupations, all other (18 percent); and computer systems analysts (12 percent), H-1B workers likely make up an even higher percentage of the overall workforce.

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The Department estimated the share of H-1B workers in the IT sector by tallying the total number of computer occupation workers in the U.S., subtracting those workers that fill positions for which H-1B workers are generally ineligible, and dividing the total by the total number of H-1B workers likely working in computer occupations, based on data and reports issued by USCIS.

See

Bureau of Labor Statistics, Employment by detailed occupation,

https://www.bls.gov/emp/tables/emp-by-detailed-occupation.htm

; United States Citizenship and Immigration Services, H-1B Authorized-to-Work Population Estimate, (2020),

available at

https://www.uscis.gov/sites/default/files/document/reports/USCIS%20H-1B%20Authorized%20to%20Work%20Report.pdf

; United States Citizenship and Immigration Services, Characteristics of H-1B Specialty Occupation Workers: Fiscal Year 2019 Annual Report to Congress October 1, 2018—September 30,

2019, (2020),

available at

https://www.uscis.gov/sites/default/files/document/reports/Characteristics_of_Specialty_Occupation_Workers_H-1B_Fiscal_Year_2019.pdf.

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These findings come from data provided by USCIS and the 2017 Occupational Employment Statistics survey from the Bureau of Labor Statistics. They are based the total number of H-1B workers according the FY19 USCIS tracker data within a SOC code divided by the 2017 OES estimate of total workers in a SOC code.

From this, the Department draws two conclusions. First, the respondents reporting wages in the CPS and NSF surveys are likely in some cases H-1B or PERM workers, given that both surveys contain responses from both U.S. citi

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