On December 14, 2021, the Department of Labor (DOL) published a final rule that rescinds a previous DOL regulation implemented in January 2021. The January 2021 regulation would have led to a dramatic increase in prevailing wages for H-1B, H-1B1, and E-3 petitions and PERM Labor Certification applications.

Background

On January 14, 2021 the Department of Labor (DOL) published a regulation that would have significantly increased prevailing wages. Initially, the increased prevailing wages were scheduled to be phased in starting in July 2021. Detailed information on that regulation can be found in our prior alert.

The Biden administration delayed the implementation of this regulation. In addition, three separate federal District courts had either set aside or enjoined the January 2021 final rule. The courts took issue with the January 2021 regulation on procedural grounds; specifically, because the DOL did not provide the public with proper notice and a meaningful opportunity to comment, and failed to disclose relevant data and analysis on the new wage data.

The December 2021 Final Rule permanently maintains the current prevailing wage level percentiles.

The January 2021 DOL regulation would have dramatically increased prevailing wage levels across all occupations; for Level I and Level II occupations the prevailing wages would have been virtually doubled. This regulation appeared to be a thinly veiled attempt by the Trump administration to discourage employers from sponsoring H-1B, H-1B1, and E-3 workers, as well as PERM applications for foreign national employees.

This December 2021 final rule by DOL enables U.S. employers to have more certainty going forward, as prevailing wages should stay relatively consistent.