The Department of Labor intends to publish a Final Rule tomorrow that will delay the implementation of new prevailing wages for PERM, H–1B, H–1B1, and E–3 job opportunities by 60 days. The rule was originally intended to take effect on March 15, 2021, but will now be delayed until May 14, 2021. This rule was previously attempted as an Interim Final Rule, skipping the notice and comment requirement, and was blocked from taking effect as a result of litigation. A new version was later issued as a Final Rule to increase the wages associated with the four prevailing wage levels used for Labor Condition Applications and PERM Labor Certifications.

The delay is the result of a memo issued by President Biden’s Chief of Staff to executive agencies directing them to consider postponing the effective dates of published regulations that have not yet taken effect for 60 days. The purpose of the freeze was to allow the Biden administration time review any questions of fact, law, and policy the regulations may raise. During the 60-day pause, agencies were to consider opening a new 30-day comment period to allow further public comments before the regulations move forward.

As a result of this freeze, the Department of Labor issued a Proposed Rule to delay the regulation. Tomorrow, that delay becomes Final after the Department received 57 comments from the stakeholder community. Commenters cited disapproval of the final rule overall, concerns that the process in adopting the final rule was rushed, fears that the wage data supporting the final rule was inaccurate, and the need to more thoroughly review the final rule.

The Department of Labor has begun a comprehensive review of this rulemaking and may take additional action as necessary to complete the review. In particular, the comments raised thus far suggest that it may be helpful for the Department to 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 regulations governing the prevailing wages.  In addition, in light of the complexity of this issue, the Department is considering whether to propose a further delay of the final rule’s effective date and accompanying implementation periods that are now scheduled to take effect on May 14, 2021, and July 1, 2021, respectively. Before further delaying the effective date and implementation periods, the Department will provide the public an opportunity to comment.

By: Emily Neumann

Emily Neumann is Managing Partner at Reddy Neumann Brown PC with 15 years of experience practicing US immigration law providing services to U.S. businesses and multinational corporations. Emily has been quoted in Bloomberg Law, U.S. News & World Report, Inside Higher Ed, and The Times of India on various hot topics in immigration. She is a member of the American Immigration Lawyers Association and Society for Human Resource Management.