Department of Labor Announces Updates Regarding Prevailing Wages For Certain Foreign Temporary and Permanent Workers

On October 7, 2020, the Department of Labor (“DOL”) announced an Interim Final Rule titled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” would go into effect on October 8, 2020. The rule would have amended the regulatory scheme used to calculate prevailing wages for foreign workers being sponsored for an employment-based Green Card through the PERM process as well as the H-1B, H-1B1, and E-3 nonimmigrant visa programs. In effect, the rule would have resulted in significant increases to the mandatory wage that must be paid to sponsor foreign national workers under these programs.

After federal courts set aside the Interim Final Rule, the DOL–then under the Trump Administration–published a Final Rule of the same title on January 14, 2021. The updated rule again sought to amend the DOL’s regulations governing prevailing wages. Subsequently, the DOL—now under the Biden administration—delayed the rule’s effective date twice, most recently until November 2022.  Despite the delay, the U.S. Chamber of Commerce and other businesses sought to have the rule invalidated by federal courts.

On June 23, 2021, the United States District Court for the Northern District of California issued an order, vacating the Final Rule and remanding the matter back to the DOL. The court’s Order was in response to the DOL’s voluntary motion to remand. Shortly thereafter, the DOL advised stakeholders that the operative version of the regulations in place prior to the October 2020 Interim Final Rule continues to be current.

The prevailing wage rules appear to be stable for the immediate future.  The DOL announced in April 2021 that it was seeking public data for calculating prevailing wages for H-1B visa holders, which would seem to indicate changes might be possible in the distant future.  Any change would take at least several months because the DOL would need to begin the rulemaking process anew.

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