DOL to propose delaying wage rule for H-1B workers until next year

The Department of Labor (DOL) will propose a regulation to further delay a rule that significantly increases wage levels for H-1B and other specialty occupation workers. The agency posted a pre-publication version of a proposed rule today.

Key Points:

• According to the prepublication version, the agency seeks to delay the rule until Nov. 14, 2022, and delay the beginning of the phased implementation of the higher wages until Jan. 1, 2023.
• The agency is scheduled to publish the official version of the proposed rule on March 22 and will accept comments from the public for 30 days. After that, the agency will review the comments and publish a final rule to officially delay the regulation and its implementation dates.
• The wage regulation, issued in the final days of the Trump administration, sharply increases wage levels for H-1B, H-1B1, E-3 workers and PERM labor certification applicants.
• DOL had already delayed the effective date of the regulation from March 15 to May 14, and has now determined that it needs additional time to thoroughly consider the legal and policy issues raised in the rule. DOL also plans to issue a separate Request for Information (RFI) on the sources and methods for determining prevailing wage levels.

Background: The wage rule was originally issued in October 2020 without notice or a public comment period, and was struck down by a federal court in December. Before Trump left office, the administration issued the current version of the rule that provided for less dramatic wage increases, a delayed effective date and a phased-in approach to implementing the wage levels. Litigation remains pending challenging the regulation.

BAL Analysis: DOL will accept comments on the proposal for 30 days and will publish a final rule after reviewing the comments. The proposed delay in the effective date of the regulation until next year and in the implementation of the higher wage levels until January 2023 is a positive development. The delay would afford the agency more time to assess the economic analysis on which the regulation was based and give employers more time to plan for potential increases to the required wage thresholds for affected employees.  

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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