As ILBSG reported earlier, the Biden Administration issued an executive order instituting a regulatory freeze. The executive order recommended that all currently published rules which are not already in effect be delayed 60 days, to give the new administration and other interested parties a chance to review. However, the recommended delay is not automatic – it requires official agency action.

Today, the DOL took action to delay the H-1B Final Rule which changes the computation of wages by adjusting the percentiles of each wage level. An advance copy of the  DOL proposal was released, which is to be officially published in the Federal Register on 2/1/2021. Currently, the effective date of this rule is March 15, 2021. Through this document, the DOL is proposing to delay the effective date until May 14, 2021. Comments on the proposed delayed effective date will be accepted for 15 days after this document is published in the Federal Register.

This is good news for H-1B petitioners, as this rule is expected to significantly increase H-1B wages. Under this rule, Level 1 is being adjusted from the 17th percentile to 35th, Level 2 from 34th to 53rd, Level 3 from 50th to 72nd, and Level 4 from 67th to 90th percentile. Notably, this is the second version of this Final Rule, after the first version was struck down in federal court in December 2020.

By delaying the effective date of the rule, the DOL is signaling its intent to comply with the Biden Administration’s recommendation that agencies consider a 30 day comment period to allow interested parties to provide comments about issues in fact, law, and policy and to consider pending petitions for reconsideration involving rules under review. With a delayed effective date, there is a higher likelihood the rule could be modified or even withdrawn before going into effect. Already, many public policy organizations are voicing criticisms of the revised rule, finding that the DOL’s justification of the rule are still not valid. Only time will tell what will ultimately end up happening with the rule, but a delayed effective date is positive news for now.

ILBSG is monitoring this development closely and will continue to post updates of any changes in the H-1B program which may affect our clients. If you have questions about this update or any other immigration related items, contact us at any time. Get the right advice for your particular needs.

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