Back to Top skip to main content
GandS U.S. Immigration Logo
Jan 15, 2021

Trump Tries Again to Raise Prevailing Wages, Success not Expected

Gregory J. Eck

On October 7, 2020, Green and Spiegel reported that the U.S. Department of Labor (DOL) announced an Interim Final Rule (IFR) designed to reform the prevailing wage methodology used by the DOL in several foreign worker programs that rely on the determination of a prevailing wage, including the H-1B, H-1B1, E-3, and PERM Labor Certification processes. The IFR went into effect on October 8, 2020, prior to the customary notice and comment period that normally accompanies the issuance of a new federal regulation.  Under the new IFR, any LCA filed on or after October 8 would be subject to the new and significantly higher minimum prevailing wage structure.  We also noted that it was expected that this new IFR would be subject to federal litigation, and therefore might be enjoined, and that is exactly what happened:  On December 2, 2020, in the case of U.S. Chamber of Commerce et al. v. DHS (20-cv-07331), a federal judge in California ruled that the DOL did not have good cause to bypass notice and comment rulemaking procedures in violation of the Administrative Procedures Act.  As a result, the newly revised prevailing wage system was set aside immediately, and the former system restored.

Now, in the last full week of the Trump administration, the DOL has once more issued a prevailing wage rule that lifts wages for H-1B, E-3, and H-1B1 nonimmigrant cases and for the PERM labor certification program. The new final rule, which was published on January 14, and goes into effect sixty days later, contains significant prevailing wage increases for all wage levels, though the new minimums are not as high as initially sought by DOL. The rule also provides a multi-year transition period which is intended to give employers time to meet the wage increases and makes certain accommodations for H-1B workers who are pursuing employment-based permanent residence. Initial wage increases are set to begin on July 1, 2021.

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

Green and Spiegel will continue to follow these critical developments related to prevailing wages as they impact U.S. employers’ ability to hire the best talent to remain competitive. 

Related Team

Greg Eck Team Page

Gregory J. Eck

(215) 395-8959

(215) 395-8959

email Gregory

Philadelphia (US Headquarters)

Full Biography

Gregory J. Eck

Recent Blogs

Feb 25, 2021

Biden Administration Lifts Suspension of Immigrant Visa Issuance

On February 24, 2021, the Biden Administration issued a Presidential Proclamation that reversed President Trump’s EO that, for more than 10 months, has prevented many foreign nationals physically outside the United States from obtaining an Immigrant Visa which, upon issuance and admission to the United States, would automatically convert the individual to a U.S. Lawful Permanent Resident (“LPR”). Passed under the guise of protecting the U.S. workforce since LPRs are permitted to accept any and all forms of employment, in effect, the ban served to keep close family members of U.S. Citizens and Permanent Residents, diversity visa lottery winners, key employees, and others from obtaining the Immigrant Visa that would permit them to assume LPR status. Learn more in this blog.

Feb 24, 2021

BREAKING NEWS: USCIS Extends Premium Processing for E-3 Australian Specialty Worker Petitions

On February 24, 2021, the U.S. Citizenship and Immigration Service (USCIS) announced that it would immediately provide the option of Premium Processing for petitioners filing Form I-129, Petition for a Nonimmigrant Worker, requesting a change or extension of status to E-3 classification, which applies only to Australian nationals coming to the U.S. to perform services in a specialty occupation. The USCIS premium processing service allows petitioners to pay an additional filing fee of $2500 to ensure a government response within fifteen days. Until now, this service was not available for the E-3 category. Learn more in this blog.

Feb 23, 2021

Supreme Court to Hear Challenge to “Public Charge Rule”

On February 22, 2021, the Supreme Court agreed to hear arguments and determine the legality of the Trump Administration’s immigration rule that bars individuals from receiving residency if they previously received public benefits. The rule is commonly referred to as the “public charge rule.” Legal challenges to the rule have wound their way through the federal court system and now the final decision about the validity of the public charge rule rests with the Supreme Court. Learn more in this blog.