The Department of Labor (DOL) has further postponed the effective date of its prevailing wage final rule to November 14, 2022. The final rule significantly increases prevailing wage requirements for permanent resident and H-1B, H-1B1 and E-3 nonimmigrant visa sponsorship. Under the revised timeline, transition to the new, higher wage tiers will commence January 1, 2023.
The prevailing wage final rule was published by the Trump Administration in January 2021, and was set to take effect on March 15, 2021. Upon taking office, the Biden Administration postponed the effective date of the rule for 60 days, until May 14, 2021, and solicited additional public comments concerning the rule and the wage computation methodology. With publication of the May 13, 2021 DOL notice, the effective date of the rule is further postponed to November 2022.
The rule revises the calculus to determine prevailing wage levels for labor condition applications required for the H-1B, H-1B1 and E-3 temporary visa programs, and prevailing wage determinations required for the PERM labor certification program. The rule would significantly increase threshold wage requirements for employers across the four tiers of prevailing wages utilized by the Department of Labor in connection with these visa programs.
Employers can welcome the 18-month reprieve on implementation of restructured wage levels for labor condition applications and prevailing wage determinations. In the interim, the Department of Labor will consider the rule’s legal and policy impact and will gather additional wage data. Notably, an earlier interim final version of the rule implemented by the Trump Administration in October 2020 was invalidated by a federal court as unlawful on procedural grounds. That rule had higher wage tiers than the current version. Nonetheless, the current version of the rule is also the subject of legal challenges. It is possible that the rule will be modified further before taking effect.