Department of Labor Rescinds Prior Regulation that Dramatically Increased Prevailing Wages

By John F. Quill

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.

If you have any questions regarding this regulation or the DOL’s prevailing wage data, please contact your Mintz immigration attorney.

 

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    Department of Labor Publishes Regulation to Increase Prevailing Wages

    January 20, 2021| Advisory|

    Author

    John F. Quill

    Member / Chair, Immigration Practice

    John’s practice encompasses all aspects of immigration and nationality law. John draws on over two decades of experience to help companies and their employees obtain nonimmigrant visas, including B, E, H, J, L, O, and TN visas. He also handles applications for PERM labor certification; extraordinary ability, outstanding researcher, and national interest waiver petitions; adjustment of status procedures; consular processing; and naturalization.