DOL to delay effective date of wage rule

The Department of Labor (DOL) has posted a pre-publication version of a notice delaying the effective date of the agency’s rule to amend wage obligations for certain visa classifications and permanent labor certifications (PERM). The delay does not change the scheduled phase-in of higher wage obligations beginning July 1, but DOL continues to review whether to delay implementation.

Key Points:

• The DOL rule restructures the wage leveling system by which employers determine required wages under the H-1B, H-1B1 and E-3 nonimmigrant programs and PERM applications.
• DOL confirmed it will delay the effective date of the rule from March 15 to May 14.
• Higher wages are scheduled to phase in starting July 1, but the notice states that DOL is reviewing the regulation and is considering whether to propose a further delay of the effective date and accompanying implementation periods. The agency would open a public comment period before further delaying the rule.
• DOL also indicated it may “issue a request for information soliciting public input on other sources of information and/or methodologies that could be used to inform any new proposal(s) to further amend [prevailing wage] regulations.”
• The wage regulation is subject to ongoing litigation.

Background: DOL attempted to increase wage obligations for the H-1B, H-1B1 and E-3 categories and PERMs through an Interim Final Rule (IFR) issued on Oct. 8, 2020, that took effect immediately. Federal courts struck down the IFR, finding that it did not go through proper rulemaking procedures, and the agency stopped applying it last fall. DOL published an amended final rule on Jan. 14.

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

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