On October 8, 2020, the Department of Labor (DOL) published an interim final rule on prevailing wages drastically increasing the four DOL wage tiers of the Occupational Employment Statistics (OES) wage survey for H-1B, H-1B1, and E-3 temporary work visas, as well as permanent labor certification (PERM) applications. See our article on this here.

With the high prevailing wages published by the DOL under the OES program, employers may wish to consider using an alternative wage survey instead of the new OES wages.

Under the DOL Appropriations Act of 2016, the agency is required to accept “statistically supported” private surveys “even where OES survey data are available.” A private wage survey must be conducted by an independent, authoritative source or other legitimate sources of wage information.

Under the DOL regulations (20 CFR 656.40) there are specific requirements that need to be met for a private alternative survey to be considered. The employer is ultimately responsible for ensuring that the survey meets all the required methodological standards. In addition, except for a few exceptions and under very strict requirements, neither the employer nor its agent, representative or attorney can collect the data for the survey

Requirements for an alternative wage survey.

The survey must be across similarly employed workers within the area of intended employment.
“similarly employed” means workers that have substantially comparable jobs in the occupational category.
“area of intended employment” means the area within normal commuting distance of the place of intended employment. Usually, this will mean within the same Metropolitan Statistical Area (MSA)
The data must be collected among workers who have the same job nature. The Department of Labor recommends the use of the Dictionary of Occupational Titles (DOT) job description to find a description that corresponds to the employer’s job offer.
The data supporting the survey must have been collected within 24 months from a representative sample of workers in the occupation. If a published survey, the survey must have been published within 24 months and must reflect the area of intended employment.
The wage determination must reflect the average rate of wages (arithmetic mean), that is the addition of the wages paid to workers similarly employed in the area of intended employment, divided by the number of such workers.
The wage data must have been collected across industries that employ workers in the occupation.
All surveys must include the methodology used to show that it is reasonable and consistent with recognized statistical standards and principles in producing a prevailing wage (e.g. contains a representative sample).

It is important to note that only one survey can be submitted at a time for a given employer.

For prevailing wage requests, DOL will not accept survey wage requests to amend pending applications. Employers must submit the survey with the initial submission of the application for a prevailing wage determination (Form ETA-9141). The agency recommends using the Foreign Labor Application Gateway (FLAG) online system to submit applications.

One difference between using a private survey versus the DOL’s prevailing wage information is that by obtaining a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center, H-1B, H-1B1, and E-3 employers are given “safe-harbor status,” which DOL says means that “if the employer’s wage compliance is investigated for any reason, the Wage and Hour Division of the Department of Labor will not challenge the validity of the prevailing wage as long as it was applied properly (i.e., correct geographic area, occupation, and skill level).”

Private wage surveys are likely to become the norm unless there is a Federal Lawsuit that is able to successfully challenge the new DOL wage rates. The use of a private wage survey is expected to result in a lower wage, which will enable Employers to keep filing H-1B petitions.

Contact your immigration attorneys at PLG for advice in specific situations and recommendations on survey companies. Attorney Monique Mutombo can be contacted at mmutombo@patellegal.com or PLG Partner can be contacted at cprescott@patellegal.com.