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BAL Senior Associate Stephen Parker is speaking this week at the American Immigration Lawyers Association (AILA) Texas Chapter Spring Conference on the topics of PERM prevailing wage and pay transparency. We recently sat down with Stephen, who practices at the firm’s Dallas headquarters, for a conversation about trending issues in immigration and his approach to the profession.
I’m now seeing PWDs back that were requested in September 2022 — so that’s about 6-7 months! It’s actually improved a bit recently, but when PWDs get to be more than just six months, the overall process becomes difficult to manage.
It’s due in part to the increased demand for PWDs and volume of requests. One possible reason for significant delays last year is that the DOL Standard Occupational Classification (SOC) codes were put into use in July 2022, an update that was previously delayed due to COVID-19. It might have been taking DOL analysts more time to process PWDs using the new coding system.
There is no way to speed up a PWD. The DOL accepts PWDs and issues them in the order received — first in, first out, without a possibility for expedited requests.
There’s not really a good way to predict upcoming processing times. DOL suffers from a lack of staff and budget issues. They’re at the mercy of bureaucratic funding, so if there’s a government shutdown due to a budget fight, things are going to get much worse.
There are real issues with significantly delayed processing times, like clients’ employees having to leave the U.S. because their green card case is not far enough along or their children aging out of the process.
I’m passionate about getting clients through a very complicated process. That’s what drives me. I’m especially inspired by the stories of the employees of our clients — where they’re from, and their boldness, tenacity, courage and willingness to go through this process because they really want to live in America.
Before coming to BAL I was stressed, dealing with less robust off-the-shelf software solutions that didn’t manage cases. Here at BAL, because of our Cobalt® technology, we’re able to manage a high volume of cases effectively through detailed case management and reporting technology.
I attended a small liberal arts college in Los Angeles, and I got to be friends with a lot of foreign students from all over the world. I loved their stories and getting to know them. After serving in AmeriCorps, I developed an interest in community and law and policy. I decided to become a paralegal first, and it was just by coincidence that the first job I applied to was an immigration firm.
I enjoy the win-win of helping somebody come to the U.S., helping an employer fill a job vacancy — and helping America to grow and become more diverse, interesting and talented.
Stephen Parker is a Senior Associate in the Dallas office of BAL, where he represents multinational corporations in immigration matters, including PERM labor certification, EB immigrant petitions and Adjustment of Status (AOS). He has a background in corporate immigration for the software industry and is an in-demand speaker at AILA conferences, CLEs and university events. Dedicated to pursuing the exceptional in immigration, Stephen assists his clients with retaining top global talent and also provides free legal assistance at citizenship workshops and through BAL’s pro bono committee.
President Biden has reversed many of the restrictive immigration policies of the past four years, but one issue he has not opposed is increasing the mandatory wage levels U.S. companies would need to pay high-skilled foreign workers under a regulation initiated by the outgoing Trump administration. The Biden administration continues to pursue the regulation, but has given employers more time to plan for the wage increases and an opportunity to provide their input to the Department of Labor. The regulation would mandate significant wage hikes for entry level H-1B workers and other specialty occupation workers (H-1B1 and E-3), as well as for labor certification, the first step for employment-sponsored immigrants in the green card process. Employers hiring high-skilled workers in these categories must attest to the government that they will pay at least the prevailing wage for the occupation for the intended job location.
The contentious regulation, originally issued on Oct. 8, 2020 introduced dramatic increases to wage levels that took effect the same day they were made public, giving employers no time to plan. Under that version of the rule, companies were required to pay entry-level H-1B workers at least the 45th percentile of the Occupational Employment Survey (OES) wage data distribution, up from the 17th percentile under existing rules. For example, the prevailing wage for an entry-level software developer in New York City would have increased from $78,811 to $116,251 overnight. Further, prevailing wage data was unavailable for numerous occupations and therefore defaulted to a $208,000 prevailing wage, including for entry-level positions.
Two months after it took effect, a federal court struck down the rule, finding that the DOL violated rulemaking procedures. Days before President Trump left office, however, the agency issued a new version of the rule, also without a public notice-and-comment period, that introduced less dramatic wage increases, a 60-day transition period and gradual phasing-in of the higher wages. Under the current version, employers would be required to pay an entry-level H-1B worker the 31.5th percentile of the OES in the first year and the 35th percentile thereafter—still significant increases. Workers in H-1B status longer than six years who are on track for a green card would gradually phase in to higher wage levels. Employers could use this additional time to adjust to the new wage level distribution or employees could seek a new employer willing to pay at the new prevailing wage level.
The revised rule faces ongoing court challenges, including claims that the rule suffers the same procedural violations that led a court to strike down the original rule, and that its economic analysis relied on faulty data and rescinded executive orders.
However, so far, Biden has not disturbed the content of the rule, but has delayed the start of the higher wage levels by 18 months to allow DOL to review the regulation. Instead of starting this summer on July 1, the first phase of wage hikes is now scheduled to begin on Jan. 1, 2023. Also, this time the DOL is soliciting information from employers and other stakeholders about how it should calculate the prevailing wages. The agency has hinted that it may take additional action based on the information it receives, including potentially issuing a new proposed rule. Companies have until June 1 to provide input about how the wage levels should be calculated and are invited to submit recommendations regarding both the data on which prevailing wage levels are based and the methodology the agency uses to structure wage levels.
Meanwhile, given the substantial investment in recruiting, sponsoring, training and retaining foreign workers, employers should calculate whether they will be able to satisfy the proposed prevailing wage levels as of Jan. 1, 2023 and in subsequent years. Businesses are on notice that the Biden administration is looking to ensure that the wage levels of foreign workers do not disadvantage U.S. workers, and they should prepare for impacts to their foreign workforce—and to their bottom line.
Asha Sairah George is an Associate in the New York office of Berry Appleman & Leiden LLP.
This article was originally published in the California Business Journal.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.