Will DOL’s Higher H-1B Prevailing Wage Prevail?

Late last week, the Department of Labor (“DOL”) announced a new rule, effectively immediately, which generally increases prevailing wages determined by using the DOL’s On-Line Wage Library. These changes will impact prevailing wages for both H-1B filings, as well as PERM labor certification applications. Any Labor Condition Application now filed with the DOL will be covered by the new rule, and any pending Prevailing Wage Applications for PERM (or H-1B) purposes will be impacted.

Importantly, the new rule still allows employers to use alternative wage surveys for H-1B filings. In addition, employers may use acceptable prevailing wage surveys when filing Prevailing Wage Applications for PERM labor certification purposes.

Given that this rule was issued as an “interim final rule” that does not allow for public comment, we expect lawsuits to be filed which would seek to enjoin its implementation. An injunction would result in a court-ordered order prohibiting the DOL from using these new prevailing wages until the courts determine whether these new rule is lawful.

USCIS simultaneously issued its own interim final rule, which would make it more difficult to secure H-1B approval for certain occupations, and which would make it much more burdensome for employers to secure H-1B approval for workers placed at client sites. Lawsuits are expected to be filed against USCIS implementation of its new rule, as well. We will issue an alert regarding the USCIS interim final rule in the coming days.

We will continue to issue updates on this important new development.