Labor Department wage rule under OMB review

The Department of Labor (DOL) has sent a rule that will amend wage levels for H-1B and permanent labor certifications (PERM) to the Office of Management and Budget (OMB) for review. The text of the rule is not yet available.

Key points:

• OMB review is the last step in the rulemaking process before publication. The text of the rule will be posted for public inspection at least a day before its official publication in the Federal Register.
• The rule is an Interim Final Rule (IFR), which means that the agency finds “for good cause” that a comment period would be “impracticable, unnecessary, or contrary to the public interest.” The government may also argue that good cause exists to make the regulation effective upon publication or soon after.
• The rule, entitled “Restructuring of H-1B/H-1B1/E-3 and PERM Wage Levels” has never been published in a regulatory agenda, and no description from the government is available.

BAL Analysis: The Department of Homeland Security’s IFR, which will alter H-1B eligibility requirements, is also currently under OMB review. The text of both rules will be posted for public inspection in the coming weeks. It is not yet known whether the agencies will issue these rules with delayed effective dates. Though the agencies will likely argue that they do not need to consider public comments before making the rules effective, members of the public may still comment on an IFR. Litigation is expected, though it is too early to predict the likelihood of success. BAL is closely monitoring the progress of these rules and will report additional information on their potential impact when the text is available.

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

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