The Department of Labor (DOL) has informed a federal court in California that it did not wish to defend the proposed prevailing wage rule, which would impose steep wage hikes, “at the same time that is internally evaluating the propriety of that Rule” in the challenge to stop the agency from changing the prevailing wage rates.

The lawsuit challenges implementation of The Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States. Previously, the Trump Administration had planned to implement this new regulation, which would substantially raise required minimum wages for workers under H-1B, H-1B1, and E-3 nonimmigrant visa classification, as well as for PERM-based green card candidates. Many saw this rule as a blow to visa programs that help bring highly skilled workers to or keep them in the United States. In particular, the wage increases would make it increasingly difficult for companies to hire foreign nationals for entry-level positions. In light of these concerns, litigation ensued and an injunction blocked implementation of the rule. Ultimately, the Biden Administration postponed the rule’s implementation until November 2022, while it reviewed the policy and sought more public comment.

The Biden DOL is asking the court to remand the policy back to the agency for further review and “careful consideration.” In addition, it did not oppose vacating the rule for now. In its filing, DOL made clear that its review could result in significant changes to the proposed rule. It noted that it wants to consider the arguments of the litigants and those of many new commentators.

Jackson Lewis attorneys will continue to follow the progress of this rule and provide updates as they become available.