A federal judge has vacated a Department of Labor (DOL) rule that would have amended wage obligations for certain temporary visa classifications and permanent labor certifications (PERM).

Key Points:

  • The DOL rule was set to take effect on Nov. 14, 2022, but Judge Jeffrey S. White accepted the DOL’s motion to remand the rule back to the agency.
  • DOL did not oppose vacating the rule because it had already significantly delayed the effective date to allow time to consider concerns raised in the litigation and regulatory comments. The agency is in the process of reviewing information it received in response to a Request for Information on prevailing wage methodology. In its motion, DOL stated that until the agency conducts further review, it “cannot say for certain the extent to which the Final Rule may need to be revised, but the concerns raised to this point suggest that there may need to be significant changes to the rulemaking going forward.”
  • The lawsuit in question, Chamber of Commerce v. US Department of Homeland Security, will continue on claims challenging DHS’ H-1B lottery prioritization rule. The DHS rule is currently set to take effect Dec. 31. It is also being challenged in the U.S. District Court for the District of Columbia.

Background: In December, Judge White set aside the Trump administration’s DOL rule and a DHS rule that amended H-1B eligibility criteria. DOL issued a final version of the wage regulation on Jan. 14, and after the change in administrations, the agency delayed the rule’s effective date until 2022. The plaintiffs in the case subsequently amended their complaint to challenge the updated version of the DOL rule and the H-1B lottery prioritization rule.

BAL Analysis: Now that the DOL wage rule has been vacated, the matter will go back to the agency for further review and consideration. BAL will continue to follow the litigation as it relates to the H-1B lottery prioritization rule and will update clients as information becomes available.

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

Copyright © 2021 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.