The Department of Labor (DOL) has revised and reissued a prevailing wage rule that lifts wages for H-1B, E-3, and H-1B1 nonimmigrant cases and the PERM labor certification program. The new rule comes after three federal district courts struck down an earlier fast-tracked version that was published and briefly implemented last year. The final rule contains significant prevailing wage increases for all wage levels, though the new minimums are not as high as initially sought by DOL. The rule also provides a multi-year transition period which is intended to give employers time to meet the wage increases and makes some accommodations for H-1B workers who are pursuing employment-based permanent residence. Initial wage increases are set to begin on July 1, 2021.
Restructuring the government prevailing wage system has long been a priority of the Trump Administration. On October 8, 2020, DOL made its first attempt to meet this goal by issuing an interim final rule (IFR), which significantly increased government prevailing wage minimums for foreign professional workers. The rule took effect immediately (before public comments were considered) with DOL justifying the expedited review and implementation as a means to support U.S. workers amid the economic impact of the COVID-19 pandemic. In early December, however, three federal courts struck down the rule, finding DOL did not have good cause to expedite implementation and bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act.
Though the revised regulation attempts to resolve some concerns raised by the federal courts and stakeholders, it will also likely face challenges in court. It is possible that the Biden Administration may pause this and other recent/forthcoming Trump Administration rules in order to provide the new administration with time to review their contents and determine whether they will move forward.