December 18, 2020
This week, a federal judge ordered the Labor Department to reissue all prevailing wage determinations for H-1B workers issued under an invalidated Trump administration rule, allowing employers to process visa applications in a timely manner.
Obtaining a prevailing wage determination is a necessary step toward obtaining several categories of work visas. For the H-1B program, a prevailing wage application may be submitted to the National Prevailing Wage Center, or the employer may independently determine the prevailing wage at the time it files its Labor Condition Application for the visa.
The move is “a significant and important step to remedy the chaos that the agency’s actions wrought on plaintiffs and all those who suffered from the brazen attempt to change the rules on the fly,” according to Jesse Bless, director of federal litigation for the American Immigration Lawyers Association.
Similar to two separate cases striking down the rule, the judge ruled that the DOL had failed to meet the procedural requirements to administer the rule without the typical notice and comment requirements. “The DOL has failed to demonstrate that it was necessary to dispense with advance notice and comment in order to ‘prevent fiscal harm’ to U.S. workers due to recent pandemic related ‘mass lay-offs,’” Sullivan said in his decision.
Outlook: The DOL has until December 20 to republish the rule if it is to go into effect before Inauguration Day. If it misses that deadline, the Biden administration may continue to attempt to apply upward pressure on H-1B visa salary levels through rulemaking of their own.