DOL Announces Further Delay of Effective Date of Final Rule on Computation of Prevailing Wage Levels

On June 23, 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 (January 14, 2021), and remanding the matter back to the U.S. Department of Labor (DOL).   DOL published the Final Rule on January 14, 2021, following district court orders that set aside an October 8, 2020 Interim Final Rule (IFR) (85 FR 63872). The Final Rule amended the Department’s regulations governing the prevailing wages for employment opportunities that U.S. employers seek to fill with foreign workers on a permanent or temporary basis under the PERM, H-1B, H-1B1, or E-3 visa programs. The final rule would have amended the federal regulations to change how DOL computed Level I through Level IV wage rates when using Occupational Employment Statistics (OES) wage data to make a National Prevailing Wage Center (NPWC) prevailing wage determination or to certify a Labor Condition Application (LCA) that relies on OES wage data. This would have resulted in higher NPWC prevailing wage determinations in each OES-based wage level.

DOL has twice delayed the effective date of the Final Rule (86 FR 13995; 86 FR 26164). In light of these delays and now the June 23, 2021 court order vacating the Final Rule, DOL has announced that the operative version of the regulations will continue to be the version in place on October 7, 2020, prior to the publication of the Final Rule on October 8, 2020.