On January 14, 2021, the U.S. Department of Labor (“DOL”) published its final rule, entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, which affects the prevailing wages of H-1B, H-1B1 and E-3 nonimmigrant visa classifications and permanent labor certifications (PERM applications) for employment-based 2nd preference (EB-2) and 3rd preference (EB-3) applications. The final rule will go into effect on March 15, 2021, but its implementation will occur in transitions beginning June 30, 2021. According to the DOL, such final rule is required to “allow the Department to more effectively ensure the employment of immigrant and nonimmigrant workers admitted or otherwise provided status through the above-referenced programs does not adversely affect the wages and job opportunities of U.S. workers.” 86 Fed. Reg. 3608 (January 14, 2021).
This rule was initially published as an Interim Final Rule (“IFR”) that was immediately effective on October 8, 2020, but was struck down on December 1, 2020 along with the Department of Homeland Security (“DHS”) IFR that amended the requirements for H-1B classification. The DOL IFR dramatically increased prevailing wage levels, where Level 1 wages increased from the 17th percentile to the 45th percentile; Level 2 wages increased from the 34th percentile to the 62nd percentile; Level 3 wages increased from the 50th percentile to the 78th percentile; and Level 4 wages increased from the 67th percentile to the 95th percentile. 85 Fed. Reg. 63872 (October 8, 2020).
On December 1, 2020, in Chamber of Commerce et al. v. DHS, et al., the U.S. District Court for the Northern District of California set aside the DOL and DHS IFRs, stating that they were issued in violation of the Administrative Procedure Act (“APA”). In addition, on December 14, 2020, in Purdue University, et al. v. Scalia, et al., the U.S. District Court for the District of Columbia ordered the DOL to reissue prevailing wage determinations using the prevailing wage levels that existed on October 7, 2020, finding that the IFR violated the APA. The DOL republished the pre-IFR prevailing wage rates on December 9, 2020.
In its January 14th final rule, the DOL made amendments to the IFR, which it claims now meets the requirements of the APA stating “The Department is satisfied that it meets the APA’s objective requirements necessary for the promulgation of a final rule in this case. Specifically, the Department’s IFR provided sufficient notice to the public by allowing for a 30 day comment period; “gave interested persons an opportunity to participate in the rule making through submission of written data, views or arguments”; the rule contained a “concise general statement of their basis and purpose”; and the rule will be published more than 30 days before it becomes effective.” 86 Fed. Reg. 3612 (January 14, 2021).
See table illustration and additional details here.
If you have any questions, please do not hesitate to contact Anthony F. Siliato, Scott R. Malyk or Lin R. Walker.