The Department of Labor is once again trying to change the formulas by which it calculates the prevailing wages for H-1B, H-1B1, E-3 and PERM.  The DOL has released an advance copy of its new final rule that would make changes to the computation of prevailing wage levels. The final rule, which adopts an interim final rule that was originally published on October 8, 2020, is currently pending public inspection and publication in the Federal Registrar. 

 The rule is expected to take effect 60 days after it is published in the Federal Register. However, it is likely that this effective date will be further extended as President-Elect Biden's transition team has indicated that his administration will issue a memorandum on January 20, delaying implementation of "midnight regulations" (i.e., regulations issued since the election but not yet effective) for 60 days. 

Frankly, the DOL’s audacity in doing this again is bewildering because their last attempt to change the formulas on October 8, 2020, was set aside by a federal court.  Last time around, the new formulas had resulted in incredibly high new wages on the DOL website for purposes of the Labor Condition Application, and the issuance of (unreasonable) prevailing wage determinations for the PERM. These dramatic changes by the DOL prompted a lawsuit by the American Immigration Lawyers Association (“AILA”), and the rule was struck down in early December.  These groups are expected to continue to litigate the revised final rule. 

The DOL insists that it is necessary to update the computation of prevailing wage levels under the existing four-tier wage structure to better reflect the actual wages earned by U.S. workers similarly employed to foreign workers, and to allow the government to ensure the employment of immigrant and nonimmigrant workers does not negatively affect the wages and job opportunities of U.S. workers. 

 We will continue to monitor these developments and provide updates as soon as possible.  

This alert is for informational purposes only. Please contact us if you would like to discuss this development further.