Last week on December 1, 2020, the U.S. District Court for the Northern District of California 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 final rule redefined the procedure for calculating prevailing wage for PERM, H-1B, H-1B1, and EB-3 visa programs. DOL did not follow notice and comment regulations when issuing the rule. It had immediate negative effects for many industries that employ H-1B workers. Furthermore, it caused over 18,000 jobs to not have access to prevailing wage data. Many of these 18,000 jobs were for entry-level positions. They defaulted to a $208,000 prevailing wage, which was not realistic for these positions. The rule had significant potential to limit economic recovery.
In response to the court's order, the Department of Labor's Office of Foreign Labor Certification (OFLC) announced a timeline on December 3, 2020 for updating the Foreign Labor Application Gateway (FLAG) system to adjust the wage data. The FLAG system will incorporate the wage data that was in place before DOL issued the rule. DOL will replace the 10/8/2020 - 6/30/2021 wage source year data that was implemented under the rule with the wage data that was in effect before the rule was issued. There are details available regarding how to obtain a redetermination of any prevailing wage determinations issued during the time the rule was in effect. For the prevailing wage determinations issued using the wage data implemented by the rule, employers may request a redetermination between now and 1/4/2021 despite the usual 30-day time limit. There is not currently information about expected processing times for these redetermination requests.
Find more information about the rule, including background on prevailing wage rates, which applications the rule would have affected, why the government issued the rule, and information about lawsuits against the rule, view our blog post from last month here.
View the rule as published in the Federal Register here.
This blog post does not serve as legal advice and does not establish any client-attorney privilege. Do not take any action based on the information contained in this post without consulting a qualified immigration attorney. If you have any questions, please do not hesitate to contact our legal team directly.
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This information comes from a news release from the American Immigration Lawyers Association (AILA Doc. No. 20120233).