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DOL Revised Final Rule Will Increase Prevailing Wages

A Department of Labor (DOL) issued a Revised Final Rule (the revised rule) yesterday which incorporated the 10/08 Interim Final Rule. Although the prevailing wage levels under the revised rule are not as high as initially sought by DOL in the 10/08 rule, it still will significantly increase the prevailing wage levels for H-1B, E-3, and H-1B1 and PERM cases. Specifically, the following shows how much the increases are compared to previous wage levels:

  • Level I Wage: current -17th percentile; 10/08 rule - 45th percentile; revised rule - 35th percentile;

  • Level II Wage: current - 34th percentile; 10/08 rule - 62nd percentile; revised rule - 53rd percentile;

  • Level III Wage: current - 50th percentile; 10/08 rule - 78th percentile; revised rule - 72nd percentile;

  • Level IV Wage: current - 67th percentile; 10/08 rule - 95th percentile; revised rule - 90th percentile.

DOL has created an approximately 1.5 years’ transition period for the general implementation of the revised rule:

  • Current wage levels will be in effect until June 30, 2021;

  • 07/01/2021 – 06/30/2022: the prevailing wage will be 90 percent of the final wage levels;

  • From 07/01/2022: the prevailing wage will be 100% of the final wage levels.

In addition, DOL has created an approximately 3.5 years’ transition period for workers who were in the process of applying for lawful permanent resident as of 10/08/2020 (as indicated by their being the beneficiaries of approved employment-based I-140 petitions, or otherwise eligible to extend their H-1B status beyond the six-year limit):

  • Current wage levels will be in effect until June 30, 2021;

  • 07/01/2021 – 06/30/2022: the prevailing wage will be 85 percent of the final wage levels;

  • 07/01/2022 – 06/30/2023: the prevailing wage will be 90 percent of the final wage levels; 07/01/2023 – 06/30/2024: the prevailing wage will be 95 percent of the final wage levels;

  • From 07/01/2024, the prevailing wage will be 100% of the final wage levels.

Again, this revised rule still might face court challenges. Also, the Biden Administration may pause or further revise it.

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