On December 1, 2020, a federal judge in the Northern District of California set aside the Department of Labor (DOL) interim final rule (IFR), Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, finding that the DOL failed to show good cause to bypass the advance notice and comment period under the Administrative Procedure Act (APA). The IFR took effect on October 8, 2020 and changed the way prevailing wage rates were calculated for the H-1B, H-1B1, and E-3 non-immigrant visa categories and for permanent labor certifications (PERM). As a result of the court’s decision, the IFR was immediately invalidated. Furthermore, on December 3, 2020, the U.S. District Court for the District of New Jersey issued a preliminary injunction in ITServe Alliance, Inc., et al. v. Scalia, et al., No. 20-cv-14604, which applied to the plaintiffs in that case.

The DOL announced that it is taking the necessary steps to comply with the courts’ orders, including making required technical changes to the Foreign Labor Application Gateway (FLAG) system. The DOL will make changes to the FLAG system to implement the wage source year data that was in effect on October 7, 2020. 

While the updates are taking place, the DOL stated that employers and their authorized attorneys may experience a brief delay in their ability to use the FLAG system to submit new Labor Condition Applications for Nonimmigrant Workers (LCA), Form ETA-9035/9035E, and receive determinations on Applications for Prevailing Wage Determination, Form ETA-9141 for PERM applications. This delay will impact applications where the Occupational Employment Statistics (OES) survey data is the prevailing wage source. 

The DOL has provided the following timeframes for filing LCAs and PWD applications: 

Timeframe for Technical Changes to FLC Online Data Center

• Beginning around 12:00PM Eastern Time on December 4, 2020, the OES prevailing wage date 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.

Timeframe for Filing Labor Condition Applications

• All LCAs 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 make necessary code changes to temporarily disablethe OES prevailing wage calculator, which uses the 10/8/2020—6/30/2021 wage source year data to prepare LCAs.
• Around 8:30AM Eastern Time on December 4, 2020, the FLAG system will be back online but, employers and their authorized attorneys or agents will temporarily be unable to submit LCAs 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 using the OES survey data that was in effect on October 7, 2020. This means that employers will not be able to submit LCAs until that day.

Timeframe for Processing Prevailing Wage Determinations

• The Office of Foreign Labor Certification’s (OFLC) National Prevailing Wage Center (NPWC) has temporarily stopped processing pending Form ETA-9141s for use in filing LCA and PERM applications.  However, employers and their authorized attorneys may continue to file new requests for a prevailing wage determination at any 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.

Requesting NPWC Review of a Prevailing Wage Determination That Was Already Issued Under the IFR

An employer who would like a redetermination of a prevailing wage determination that was issued using the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR may timely submit a request for review by the NPWC Director on or before January 4, 2021.

The DOL has instructed to use one of the following methods to submit a timely request for review:

Online (preferred):

You can access your Foreign Labor Application Gateway (FLAG) System account to request review of a prevailing wage determination issued by the NPWC Director. In the Historical Cases table, search for the case number, then open the case details.  In the Actions tab, select Request Redetermination.  You will be prompted to add a case note and may upload a document if needed.  Upon submission, your request will be routed to an analyst for review.  You will receive an email confirmation that your request was submitted successfully.

 
Email:

FLC.PWD@dol.gov

In the email subject line, please include the phrase “IFR Request for Review” followed by the full case number on the Form ETA-9141.

Mail:

Employment and Training Administration
Office of Foreign Labor Certification
National Prevailing Wage Center
200 Constitution Ave NW
Room N-5311
Washington, DC 20210

Attn: IFR Request for Review

You can include either the full case number in the cover letter of the request for NPWC Director review or a hard copy of the Form ETA-9141 issued under the IFR.

If you have any questions regarding this matter, please contact our team at info@rnlawgroup.com or schedule a consultation with one of our immigration attorneys at https://appointments.rnlawgroup.com.

Background: Federal Judge Sets Aside DOL Wage Rule and DHS H-1B Eligibility Rule

By: Krystal Alanis 

krystal@rnlawgroup.com

Krystal Alanis is a Partner at Reddy Neumann Brown PC She acts as the Managing Attorney for the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.