The Department of Labor (DOL) will delay its regulation to amend wage obligations for certain temporary visa classifications and permanent labor certifications (PERM), according to a pre-publication notice posted Wednesday.

Key Points:

  • The agency will delay the wage rule’s effective date until Nov. 14, 2022, and the beginning of the transition period to higher wages until Jan. 1, 2023. Higher wage requirements had been scheduled to phase in starting July 1, 2021.
  • The 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 will continue to accept information (including anonymous submissions) from the public on prevailing wage data and methodology until June 1. DOL stated in the notice that the agency will use the information in its review of the rule and “may take additional action as needed, such as potentially engaging in new rulemaking.”
  • The wage rule is subject to ongoing litigation.

Background: The DOL wage rule was originally issued in October 2020 and took effect immediately without notice or a public comment period. It was then struck down by a federal court in December. The Trump administration issued a new version of the rule in January, providing for less dramatic wage increases, a delayed effective date and a phased-in approach to implementing new wage levels. The Biden administration has now delayed the rule again to allow more time to review it. A pre-publication version of the delay rule is available here. The final rule is scheduled for publication in the Federal Register on May 13.

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

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