Sep 17 2020

Forthcoming DOL Rule Expected to Raise H-1B, E-3, H-1B1 and PERM Wage Minimums

United States

At a glance

  • The Office of Management and Budget (OMB) is reviewing a Department of Labor (DOL) regulation that seeks to restructure the wage level system used to establish wage minimums in the H-1B, H-1B1, E-3 and PERM programs. The forthcoming rule is expected to increase wage requirements for the four programs.
  • DOL plans to issue the regulation as an interim final rule having immediate or near-immediate impact, with no opportunity for public feedback before the rule takes effect.
  • OMB continues to review a separate interim final rule that is expected to toughen H-1B eligibility criteria and employer obligations.

The issue

The Department of Labor (DOL) has submitted to the Office of Management and Budget (OMB) a fast- tracked regulation to restructure wage levels and requirements in the H-1B, H-1B1, E-3 and PERM programs. Though contents of the regulation will remain confidential until released for publication, the rule is likely to increase minimum wages in the four programs and tighten wage requirements for employers. H-1B wage increases have long been a goal of the Trump Administration, though the forthcoming rule has not previously appeared on the Administration’s regulatory agenda.

DOL plans to issue the regulation as an interim final rule with immediate or near-immediate impact. This means that employers and other members of the public would not have an opportunity to provide public feedback before the rule takes effect. OMB review is generally the last step before an interim regulation is published and implemented. 

The rule is being introduced as the Department of Homeland Security (DHS) is moving forward on its own interim final rule with immediate effect on the H-1B program. As we have reported, the DHS rule will change the key definitions of H-1B specialty occupation, H-1B employment and employer-employee relationship, with a likely focus on toughening eligibility criteria and further restricting the offsite placement of H-1B workers. Further H-1B regulatory activity is also possible.

What’s next for the DOL wage regulation

OMB has up to 90 days to review the regulation, but could take less time given the Trump Administration’s goal of imposing further restrictions on the H-1B category and other employment-based immigration programs. Once OMB clears the regulation, it will be published in the Federal Register and is expected to take effect immediately or shortly after publication. The regulation may be challenged in court.

Fragomen is closely monitoring the rule and will provide updates as it advances through the federal review process.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.