Without notice or the opportunity for public comment, as required by federal law, the Department of Labor (DOL) issued a regulation that will significantly raise the minimum required wages for H-1B, H-1B1, E-3 and PERM labor certification cases. The rules, which go into effect immediately, will dramatically increase the prevailing wages that serve as the minimum wage employers must pay to all H-1B, E-3 and H-1B1 workers. Given the lack of notice, we expect federal court litigation that will challenge and seek to enjoin the DOL from applying this rule.

By way of background, each year the DOL prepares and publishes a four-tier salary survey that establishes prevailing wage rates for H-1B, H-1B1, E-3 and PERM labor certification cases. This new regulation will significantly increase prevailing wages for all four tiers. For example, prior to the implementation of this regulation, a Level 2 (a job requiring a bachelor’s and several years’ experience) for a database administrator in New York City was $90,584; today it is $130,051 (almost a 44% increase).

The regulation does not prohibit employers from using alternative salary surveys, which generally provide prevailing wages more in line with the reality of the marketplace. The drawback to the alternative surveys is they are often industry-focused and may be limited in the positions and geographic locations they cover.