By Roujin Mozaffarimehr
This week, two District Courts set aside the Interim Final Rule, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872 (Oct. 8, 2020), of the U.S. Department of Labor (DOL).
The U.S. District Court for the Northern District of California (Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331) and the U.S. District Court for the District of New Jersey (ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604) issued orders setting aside the DOL IFR.
As we announced back in October, the Department of Labor published an interim final rule (IFR) (85 FR 63918) that dramatically changed the calculation methodology of the prevailing wage for OES-based wage levels for all occupations. This new rule took effect immediately on October 8, 2020 and impacted wage rates for H-1Bs, H-1B1s, and E-3s, as well as prevailing wage determinations for PERMs. This rule is set aside for now, but each court case is open to an appeal by the government.
On December 3, 2020, the Department of Labor announced its timeline for reverting back to the wage levels that were in place prior to October 8, 2020. This includes changes to the FLAG system, which is used to file Labor Condition Applications (LCAs) and Prevailing Wage Determinations (PWDs).
The DOL has provided the following implementation timeline:
OES Wage Data
- To limit any confusion for stakeholders, beginning at approximately 12:00PM (Noon) Eastern Time on December 4, 2020, this data source will be updated at https://www.flcdatacenter.com/ to reflect the correct prevailing wage data for each SOC and area of intended employment through June 30, 2021.
- All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.
- Beginning around 6:00AM Eastern Time on December 4, 2020, the FLAG system will be temporarily unavailable to deploy necessary code changes to temporarily disable the OES prevailing wage calculator, which uses the 10/8/2020-6/30/2021 wage source year data to prepare Form ETA-9035/9035Es.
- Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online; however, employers and their authorized attorneys or agents will temporarily not be able to submit applications for processing where OES survey data is the prevailing wage source.
- Beginning around 8:30AM Eastern Time on December 9, 2020, employers and their authorized attorneys or agents will be able to submit new LCAs, Form ETA-9035/9035E, using the OES survey data that was in effect on October 7, 2020.
Prevailing Wage Determinations
- OFLC’s National Prevailing Wage Center (NPWC) has temporarily paused processing pending Form ETA-9141s for use in filing LCA and PERM applications. However, employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time.
- Beginning around 8:30AM Eastern Time on December 15, 2020, OFLC’s NPWC will resume processing all pending and new Form ETA-9141s for use in filing LCA and PERM applications, and will use the OES survey data that was in effect on October 7, 2020 for prevailing wage determinations where the OES survey data is the prevailing wage source.
For Prevailing Wage Determinations Issued In Accordance with the IFR:
- Any employer desiring review of a PWD issued using the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR may make a request for review by the NPWC Director under 20 CFR 656.41 on or before January 4, 2021, and the Director will consider such request timely under 20 CFR 656.41(a).
Please do not hesitate to reach out to the MPLG team should you have any questions regarding these changes.