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US DEPARTMENT OF LABOR AGAIN ISSUES FINAL RULE TO REFORM PREVAILING WAGE SYSTEM

On January 12, 2021 the Department of Labor (DOL) published an advanced copy of a final rule which adopts, with changes, the interim final rule published at 85 FR 63872 amending the regulations governing permanent labor certifications and Labor Condition Applications to incorporate changes to the computation of prevailing wage levels. The updated final rule is expected to be republished as a final rule on Thursday, January 14, 2021.The rule was initially published and effective on October 8, 2020, and subsequently was struck down on December 1, 2020, alongside a DHS interim final rule that amended requirements for H-1B classification.

The rule is expected to take effect 60 days from the date of publication. It also phases in the latest higher salary requirements over several months. The Phase 1 will be effective till June 30, 2021; LCAs filed and PWDs issued during this timeframe are to remain subject to current wage levels, with Level I at the 17th percentile, Level II at the 34th percentile, Level III at the 50th percentile and Level IV at the 67th percentile. Phase 2 will last between July 01, 2021 and June 30, 2022, Levels I and IV are to be set at the higher of either 90% of the wage value calculated at the 35th and 90th percentile or the mean of the lower one-third of the current OES wage distribution. Levels II and III are to be set using the wage calculations outlined in the Immigration and Nationality Act (INA), which rely on the amounts listed in Levels I and IV. Under Phase 3, which will become effective on July 01, 2022, the new wage levels are to take effect without any adjustments, with Level I at the 35th percentile, Level II at the 53rd percentile, Level III at the 72nd percentile and Level IV at the 90thpercentile.” Finally, under Phase 4, which will become effective on July 1, 2023 through June 30, 2024; Levels I and IV are to be set at the higher of either 95% of the wage value calculated at the 35th and 90th percentile or the mean of the lower one-third of the current OES wage distribution. Levels II and III are to be set using the wage calculations established in the INA. Accordingly, from July 1, 2024, all LCAs and PWDs will be subject to the new leveling system.

Please note, the effective date of the rule will likely be further extended as the President-Elect’s transition team has indicated that the Biden Administration will issue a memorandum on January 20 delaying implementation of “midnight regulations” (i.e. those issued since the election but not yet effective) for 60 days. It is also expected that groups that previously challenged this regulation will continue to litigate the revised final rule.

We will regularly update the blog as soon as any new information is available.

Disclaimer

This article aims to provide new information concerning changes to the prevailing wage system. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).

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