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Trump’s Immigration Position Paper: A Nuanced Examination Law360, New York (May 23, 2016, 3:29 PM ET) -As you may be aware, Donald Trump has written a position paper on immigration reform, available on his campaign website.[1] Much has been discussed about Trump’s immigration views on deportation, “the wall,” ending birthright citizenship and other matters outlined in this position paper, but I would like to focus on a more nuanced point. Trump states the following in response to the requirement that an H-1B worker be paid the “prevailing wage” for his or her occupation: Increas[ing] prevailing wage for H-1Bs ... will force companies to give these coveted entry-level jobs to the existing domestic pool of unemployed native Noah Klug and immigrant workers in the U.S., instead of flying in cheaper workers from overseas. This will improve the number of black, Hispanic and female workers in Silicon Valley who have been passed over in favor of the H-1B program ... The term “prevailing wage” is a very specific legal term, and is often misconstrued. While some think it represents the minimum wage that must be paid to an H-1B worker, prevailing wage actually indicates the “going rate” or “market rate” for an industry occupation in a given location. U.S. Department of Labor guidelines define prevailing wage as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment.”[2] DOL regulations similarly define prevailing wage as “the arithmetic mean of the wages of workers similarly employed.”[3] The aim of this requirement is to prevent employers from sourcing foreign H-1B talent at below market wages instead of locally-based workers. Taken at face value, Trump’s assertion that he will “increase prevailing wage for H-1Bs” does not make sense because in theory he would have to raise the market rate for all professionals working in the U.S. This is what “prevailing wage for H-1Bs” is based upon, and can only be increased if the market salary rate rises. Further, this prevailing wage requirement is embedded in the statute, so it is not as if Trump could simply change the standard to some other type of higher minimum wage level without also changing legislation.[4] If a change in legislation is not a realistic option for Trump, it is also very likely beyond his control to raise the prevailing wage solely based on market rates. However, he may be able to increase the prevailing wage rates used for H-1B applications in effect. How so? Through modifying the methodology and data used for the calculations. Slicing and dicing data is within Trump’s control, because the methodology is set forth by the DOL, and could be changed administratively. However, a modification to methods and data would almost certainly be challenged in court.

Additionally, it should be noted that the current system for determining prevailing wage levels is already extremely rigorous. It would be difficult to envision how the prevailing wage determination process could be modified to require higher wage levels across the board. The current policy was established in November 2009 in a very detailed, 36-page DOL memorandum.[5] The memorandum provides that relevant regulatory factors must be considered: the nature of the job offer, the area of intended employment, and the job duties for workers similarly employed.[6] The memorandum goes on to carefully explain what each of these factors mean and how they are determined.[7] The DOL memorandum also requires that the following step-by-step process must be followed in wage determination: If the job offer is for an occupation not covered by a collective bargaining agreement and the employer does not choose to provide a survey or request use of a current wage determination in the area under the Davis Bacon or McNamara O’Hara Service Contract Acts, the wage component of the U.S. Bureau of Labor Statistics' Occupational Employment Statistics (OES) survey shall be used to determine the prevailing wage for an employer’s job offer. The OES survey is a national survey managed by the BLS which provides a large enough sample to allow the BLS to determine a prevailing wage for most occupations in every area of intended employment in the United States. The OES wage data is made available at the state and substate areas so the National Prevailing Wage and Helpdesk Center (NPWHC) can select the geographic area of intended employment. The OnLine Wage Library has been developed to account for these requirements. The NPWHC should select the state and substate area that represents the area for the employer’s job offer. The new requirements specify that determinations using a government survey shall be made available for each occupation at four levels of wages commensurate with experience, education and the level of supervision. The NPWHC shall make a prevailing wage determination selecting one of the four wage levels for an occupation based on a comparison of the employer’s job requirements to the occupational requirements: tasks, knowledge, skills and specific vocational preparation (education, training and experience) generally required for acceptable performance in that occupation.[8] The memorandum continues for a number of pages to lay out the process for determining the correct wage level. As you can see, the required process for determining prevailing wages is quite detailed and regimented, focused on achieving the most accurate determination possible. Absent an increase in overall wage levels for H-1B and U.S. workers alike, it may be difficult for Trump to defend any change to the wage methodology that results in an increase in industry-wide prevailing wage levels. While modifying data or methodologies may be Trump’s only means of increasing prevailing wages, it is worth mentioning that there is more to the H-1B wage requirement than just the prevailing wage clause. U.S. employers are statutorily required to pay H-1B workers the actual wages paid to similarly situated employees in the company, or the prevailing wage — whichever is greater.[9] Additionally, other employer requirements exist to help protect the U.S. work force from being undercut by H-1B workers.[10] These include maintaining auditable paperwork, demonstrating how the actual wage and prevailing wage were calculated, and creating various attestations, including a statement from the employer to offer benefits to the H-1B workers on the same basis as U.S. workers.[11]

To summarize: If Donald Trump wants to raise prevailing wages to discourage employment of H-1B workers, he is going to have to work very closely with Congress. Manipulating government data or the prevailing wage determination process will only get him so far, and he will be on unsteady legal footing. Trump will need to look elsewhere if he wants to act unilaterally to overhaul the immigration system. —By Noah Klug, Berry Appleman & Leiden LLP Noah Klug is a senior associate in Berry Appleman's Dallas office. He previously served as an attorneyadviser at a U.S. government immigration agency in the Washington, D.C., area. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] https://www.donaldjtrump.com/positions/immigration-reform [2] See U.S Department of Labor website at https://www.foreignlaborcert.doleta.gov/pwscreens.cfm [3] See 20 CFR § 655.731(a)(2)(ii). This regulatory provision provides that in some cases median, rather than mean, should be used in the calculations. [4] See Immigration and Nationality Act of 1948 (INA) § 212(n). [5] U.S. Department of Labor Employment and Training Administration, “Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs” (Revised November 2009). [6] Id. at 3; see also 20 § CFR 656.40. [7] Id. at 4. [8] Id. at 6. [9] See id; see also INA § 212(n). [10] See 20 CFR § 655.700 et seq., see also U.S. Department of Labor website at http://www.dol.gov/compliance/guide/h1b.htm [11] See id. All Content © 2003-2016, Portfolio Media, Inc.