DOL Prevailing Wage Rule Postponed

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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.

Background

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.

Looking Ahead

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.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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