DOL Publishes Final Rule Adopting Increases in Prevailing Wage Levels

On Tuesday, January 12th, the Department of Labor (DOL) announced a Final Rule that adopts, with some modification, the Interim Final Rule (IFR) published in October that dramatically increased prevailing wage rates that must be paid to H-1B, H-1B1 and E-3 temporary workers, as well the required wage rates for the PERM Labor Certification-based process. The IFR, which was set aside in court in December, sought to reform the methodology of prevailing wage calculations in an effort to “prevent potential abuse” of the PERM and H-1B programs. The Final Rule is pending publication in the Federal Register, and would take effect 60 days from the date of publication.

Although the new prevailing wage rule would impose significant new challenges for H-1B sponsorship, we believe that it is unlikely that the rule will ultimately take effect. President-elect Biden has already stated his intent to issue an Executive Order freezing any “midnight rulemaking” such as this made by the outgoing Trump Administration. Even if the rule is not blocked by the new administration, it will be subject to further legal challenges, and likely found by a court to be inconsistent with the underlying statutory law, thus exceeding the Trump Administration’s rulemaking authority.

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