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Original Date Announced
January 14, 2021The DOL publishes a new final rule, supplanting an enjoined interim final rule, that will gradually raise all four salary tiers over a period of a year and a half for the H-1B, E-3, H-1B1 and PERM programs, with the first increase set to occur on July 1, 2021. The final rule contains significant prevailing wage increases for all wage levels, though not as high as those initially sought by DOL in the now-enjoined interim rule.
The interim final rule, issued on October 8, 2020, had attempted to immediately amend Employment and Training Administration (ETA) regulations at 20 CFR § 656 and 20 CFR § 655, subpart H, to restructure the prevailing wage system. The rule would have increased the wage minimums; entry-level wages for H-1B and PERM cases, for example, would have increased from the 17th percentile to the 45th percentile of wages for the occupation and geographic location. [ID #1091]
85 FR 63872 86 FR 3608Effective Date
March 15, 2021Subsequent Trump and Court Action(s)
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October 29, 2020
FAQ on interim final rule
DOL issues round two of frequently asked questions addressing issues related to the interim final rule on computation of prevailing wage levels.
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December 1, 2020
Chamber of Commerce, et al., v. DHS, et al.: Order granting plaintiffs' motion for partial summary judgment
Finding that the government failed to show good cause for effectuating a new rule without first conducting APA notice and comment, the U.S. district court in the Northern District of California sets aside both the DOL interim final wage rule and the USCIS rule regarding H-1Bs.
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December 3, 2020
OFLC Announces Updates to Implementation of Prevailing Wage Rule in Response to District Court Orders
DOL issues FAQ describing steps taken to comply with courts' orders striking down its interim final prevailing wage rule. Steps include revision of the FLAG system, and a timeline for the transition.
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December 3, 2020
Complaint: ITServe Alliance Inc. v. Scalia
Preliminary injunction in suit against DOL interim final rule by information technology companies.
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December 14, 2020
Purdue University et al v. Scalia district court memorandum opinion
D.C. District Court grants plaintiffs' motions for summary judgment against the interim final prevailing wage rule, and orders DOL to re-issue prevailing wage determinations.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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June 29, 2021
2021.06.29 Announcements June 29, 2021. OFLC Announces Updates to Implementation of the Final Rule Affecting Wages for H-1B and PERM Workers; District Court’s Order Vacating Final Rule
On June 29, 2021, the U.S. District Court for the Northern District of California issued an order in Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331, vacating the Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 86 FR 3608 (Jan. 14, 2021), and remanding the matter back to the U.S. Department of Labor (DOL). DOL posted an update stating that the operative version of the regulations at 20 CFR 656.40 and 20 CFR 655.731 continues to be the version in place on October 7, 2020, prior to the publication of the IFR.
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Biden Administration Action: Delayed
March 12, 2021Fed. Reg. Notice - Delay of Effective Date for DOL
This Biden Administration policy modifies the Trump-era policy identified in this entry.
On March 12, 2021, the Department of Labor finalized its February 1, 2021 proposal to delay the effective date of the DOL wage-hike rule by 60 days, allowing the agency to review submitted comments. The new effective date is May 14, 2021.
View DocumentBiden Administration Action: Delayed
March 22, 2021Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States: Proposed Delay of Effective and Transition Dates
This Biden Administration policy modifies the Trump-era policy identified in this entry.
On March 22, 2021, the Biden DOL proposed further delaying the effective date of the rule by eighteen months or until November 14, 2022, along with corresponding proposed delays to the rule's transition dates.
View DocumentBiden Administration Action: Delayed
May 13, 20212021.05.13 Federal Register
This Biden Administration policy modifies the Trump-era policy identified in this entry.
On May 13, 2021, the Biden DOL issued a final rule announcing it will delay the effective date of the rule for 18 months until November 14, 2022, along with corresponding proposed delays to the rule's transition dates.
View DocumentBiden Administration Action: Revoked/Replaced
December 13, 20212021.12.13 Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of Vacatur
This Biden administration policy revokes in full the Trump-era policy identified in this entry.
On December 13, 2021, DOL implemented the vacatur of the January 14, 2021 final rule on the computation of prevailing wage levels ordered by the Federal district court. The rule restores the regulatory text to appear as it did before the October 8, 2021 interim final rule.
View DocumentCurrent Status
Not in effectMost Recent Action
December 13, 2021 Action: Revoked/Replaced 2021.12.13 Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States, Implementation of VacaturMarch 12, 2021Acted on by Biden Administration
March 22, 2021Acted on by Biden Administration
May 13, 2021Acted on by Biden Administration
December 13, 2021Acted on by Biden Administration
Original Trump Policy Status
Trump Administration Action: RuleAgencies Affected: DOLAssociated or Derivative Policies
Pre Trump-Era Policies
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Regulation regarding prevailing wage determinations for PERM applications as it existed prior to this rulemaking.
20 CFR § 656.40 -
Regulation regarding prevailing wage determinations for nonimmigrant labor certification applications as it existed prior to this rulemaking.
20 CFR § 655 Subpart H
Documents
Trump-Era Policy Documents
Biden Administration Policy Documents
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Commentary
DOL’s H-1B Wage Rule Massively Understates Wage Increases by up to 26 Percent
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