BREAKING: DOL proposes to increase prevailing wage levels for H-1B, PERM-based green card applications

Tomorrow the U.S. Department of Labor will formally publish a proposed rule to increase prevailing wage levels that would affect future H-1B and Permanent Labor Certification-based green card applications. Here is the text of the proposed rule.

The proposed increases, based on wage data provided by the Occupational Employment and Wage Statistics survey, are as follows:

• Wage Level I: From 17^th percentile to 34^th
• Wage Level II: From 34^th percentile to 52^nd
• Wage Level III: From 50^th percentile to 70^th
• Wage Level IV: From 67^th to 88^th

The proposed rule will have a 60-day notice period and opportunity for comment. After that period ends, we expect the DOL to issue a final rule that would take effect in approximately 30-60 days.

If the proposed rule takes effect, it will apply only on a “going-forward” basis. It is not retroactive with respect to Prevailing Wage Determinations already issued or Labor Condition Applications that have already been certified. However, it would apply to any wage determinations or LCAs that are pending as of the effective date of the final rule.

It is important to note that Alternative Wage Surveys will still be permitted under the proposed rule. 

The proposed increase is significant. It is very similar to the increases that were attempted in 2021, during the first Trump Administration. The 2021 increases were vacated by the courts and later withdrawn by the Biden Administration. 

We expect litigation on the new rule and, again, a similar rule was vacated by the courts. However, it is possible that the litigation outcome will be different this time around.

We will keep you posted. In the meantime, if you have questions, please contact any member of Constangy’s Immigration Practice Group.