DOL Delays Effective Date of Final Rule Altering Prevailing Wage Levels

UPDATE: On March 22, DOL issued a proposal to further delay the effective date of the rule by 18 months or until November 14, 2022, along with corresponding proposed delays to the rule’s transition dates. DOL has provided a 30-day comment period on the proposal and announced its intention to issue a Request for Information (RFI) seeking information from stakeholders “on the sources and methods for determining prevailing wage levels covering employment opportunities that United States (U.S.) employers seek to fill with foreign workers.” CUPA-HR intends to submit comments to both the proposal and any future RFI.

On March 12, 2021, the Department of Labor (DOL) issued a final rule to delay the effective date of the January 2021 final rule entitled, “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States” (Prevailing Wage Rule) from March 15 to May 14.

The Prevailing Wage Rule, which was finalized under the leadership of the Trump administration, will raise government prevailing wage minimums for foreign professional workers under the H-1B and other visa programs. A prior version of the rule, released as an Interim Final Rule (IFR), went into effect on October 8, 2020,  but was subsequently struck down by three federal district courts.

DOL’s Employment and Training Administration (ETA) proposed the delay on February 1, 2021, in accordance with White House Chief of Staff Ron Klain’s memorandum directing agencies to “consider” postponing the effective dates for regulations that had been published in the Federal Register but not yet taken effect “for the purpose of reviewing questions of fact, law, and policy raised therein.” The proposed delay also provided a brief 15-day comment period during which the agency received 17 comments in support of the proposed delay and four comments opposing the delay. CUPA-HR submitted comments supporting the delay while also urging “ETA to begin rulemaking to withdraw the final rule as it is both substantively and procedurally flawed.”

Citing the comments issued in response to the delay, DOL stated 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),” and that it is “considering whether to propose a further delay of the final rule’s effective date and accompanying implementation periods that are currently scheduled to take effect on May 14, 2021, and July 1, 2021, respectively.”

CUPA-HR will continue to keep members informed as more information becomes available on the ultimate fate of this regulation.