DOL Proposes Further Delays to New OES Wage Rule

On March 22, 2021, the U.S. Department of Labor (DOL) proposed delaying the implementation of its final rule entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” (The Biden administration renamed the rule “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Immigrants and Non-Immigrants in the United States.”) The final rule, published in the waning days of the Trump administration, is an updated version of an interim final rule issued on October 8, 2020, that had revised the calculation of wage levels under the four-tiered wage structure of the Occupational Employment Statistics (OES) wage survey for purposes of determining prevailing wages.

On March 12, 2021, the DOL issued a final rule delaying the effective date until May 14, 2021; the proposed delay will postpone the effective date until November 14, 2022. The DOL’s proposal also will delay the transitional implementation of the new rule, from July 1, 2021, until January 1, 2023. The DOL expects that this proposed delay will allow agency officials the opportunity to “review[] questions of fact, law, and policy” that the rule may raise, as well as give the agency more time to better assess and understand industry comments regarding the rule. Moreover, the DOL has indicated that it needs more time to accurately determine whether the proposed wage structure appropriately reflects the wages of similarly employed U.S. workers. The DOL’s action is consistent with the Biden administration’s January 20, 2021, memorandum outlining a proposed regulatory freeze on yet-to-be-effective rules published in the final days of the Trump administration.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the USCIS policy changes and will post updates on the Immigration blog as additional information becomes available.