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DOL issues rule restructuring prevailing wage system, increasing minimums

  1. Date Announced

    Jan. 14, 2021

    The 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]

    See Biden administration action below.

    View Policy Document View Policy Document
  2. Effective Date of Change

    March 15, 2021
  3. Subsequent Action

    October 29, 2020

    DOL issues round two of frequently asked questions addressing issues related to the interim final rule on computation of prevailing wage levels.

    FAQ on interim final rule
  4. Subsequent Action

    December 1, 2020

    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.

    Chamber of Commerce, et al., v. DHS, et al.: Order granting plaintiffs' motion for partial summary judgment
  5. Subsequent Action

    December 3, 2020

    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.

    OFLC Announces Updates to Implementation of Prevailing Wage Rule in Response to District Court Orders
  6. Subsequent Action

    December 3, 2020

    Preliminary injunction in suit against DOL interim final rule by information technology companies.

    Complaint: ITServe Alliance Inc. v. Scalia
  7. Subsequent Action

    December 14, 2020

    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.**

    Purdue University et al v. Scalia district court memorandum opinion
  8. Biden Administration Action

    March 12, 2021

    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.

    Fed. Reg. Notice - Delay of Effective Date for DOL
  9. Biden Administration Action

    March 22, 2021

    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.

    Strengthening 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

Commentary

DOL’s H-1B Wage Rule Massively Understates Wage Increases by up to 26 Percent

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