Court Orders Department of Labor Must Reissue Prevailing Wage Determinations

A federal district court has ruled that the Department of Labor did not have good cause to expedite a restructuring of the prevailing wage system for H-1B, E-3 and H-1B1 nonimmigrants and was in violation of the Administrative Procedures Act, making this the third court to rule against the regulation in recent weeks. The court has ordered the Department of Labor to reissue prevailing wage determinations made on or after October 8, 2020. The decision comes after a pair of consolidated lawsuits filed by universities and business groups challenged the Department of Labor’s release of an interim final regulation that resulted in significantly higher government prevailing wage minimums for foreign professional workers, citing the economic impact of the COVID-19 pandemic and high U.S. unemployment and grounds to bypass public notice and comment. The Department of Labor is expected to issue a procedural update for affected employers in the coming weeks.

Despite several legal setbacks, the Trump Administration is continuing to pursue additional regulations that would adversely impact the H-1B and other employment-based immigration programs, including a revised prevailing wage rule before the Biden leadership transition.

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