January 14, 2021
Executive Summary: New Department of Labor regulations have been introduced which will cause significant increases in required Prevailing Wage Levels in the H-1B, E-3, H-1B1 and PERM categories. The new Wage Levels may become mandatory as early as March, although future litigation is likely to delay this.
As previously reported, in October of last year the U.S. Department of Labor (DOL) announced a set of interim rules, entitled ‘Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.’ The stated purpose of the proposed law was a redesigning of the Prevailing Wage Determination process for employers’ sponsorship of foreign workers in the H-1B, E-3, H-1B1 and PERM categories.
Under those earlier regulations, which went into immediate effect, required minimum wages to be paid to foreign workers in the U.S. were significantly increased. Shortly after the regulations were enacted, however, they were halted by litigation in Federal District Court.
This week, the DOL has introduced a new set of regulations that adopt, with some changes, the interim rules published in October. While similar, the new regulations reflect changes to the manner of computation used for Prevailing Wage Levels. The final regulation (click here to view), is currently pending notice and comment in the Federal Register, and is expected to take effect 60 days from the date of its publication.
The effective date of the rule will likely be further extended, however, as President-Elect Biden's transition team has indicated that the administration will issue an immediate order on January 20, 2020, delaying implementation of “midnight regulations” put forth by the departing administration. Groups that previously challenged the earlier regulations are also expected to continue to litigate the revised, final rule. Therefore, no effective date is yet certain.
We will continue to monitor this situation closely, and provide updates as they become available. Please contact me or another member of our Immigration Practice Team if you have any questions, or would otherwise like to discuss.