Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The U.S. Department of Labor has announced that it plans to comply with a new U.S. district court order ruling that the agency violated the Administrative Procedure Act by failing to engage in the proper rule-making process for a new interim final rule (IFR) that implemented significant and immediate increases in prevailing wage rates for skilled foreign workers.
The court order, issued December 1, 2020, is effective nationwide and sets aside the IFR in its entirety, which had raised wage rates precipitously (tripling minimum wage rates for certain locations and occupations). In response, the DOL confirmed that it will comply with the court order and will issue revised wage rates (at pre-October 8, 2020 levels) to replace the 10/8/2020-6/30/2021 wage source year data improperly implemented under the IFR.
Takeaways for Filing Labor Condition Applications (LCAs)
As a result of the court order, the following apply:
- On December 4, 2020 at 12:00 p.m. EST, DOL will begin updating data sources to reflect the correct prevailing wage data for each Standard Occupational Classification (SOC) and area of intended employment through June 30, 2021.
- All Form ETA-9035/9035Es (LCA applications) submitted using the Foreign Labor Application Gateway (FLAG) system through 5:59 AM EST on December 4, 2020, where the Occupational Employment Statistics (OES) survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.
- Starting at 6:00 AM EST on December 4, 2020, the FLAG system will be temporarily unavailable and the OES prevailing wage calculator disabled in order to make the necessary code changes.
- At 8:30 AM EST on December 9, 2020, employers and 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.
- Note: Employers or authorized representatives will still be able to submit new LCAs for processing where an independent survey (not the OES survey) is the prevailing wage source.
Pause on Processing of Prevailing Wage Determinations (PWDs)
The court order also affects PWD as follows:
- The Office of Foreign Labor Certification (OFLC)’s National Prevailing Wage Center (NPWC) has paused processing pending Form ETA-9141s for use in filing LCA and Permanent Labor Certification (PERM) applications.
- At 8:30 AM EST 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.
Review of Prior PWDs Issued Under the IFR
Because the rule went into effect immediately on October 8, 2020, employers that filed PWDs pursuant to the previously in-effect survey data would likely have received significantly higher wage determinations for proposed employee roles. They will be able to request review of the determinations by the NPWC Director by January 4, 2021. Employers that would like to request review of a prevailing wage determination issued using the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR (and overturned) will be able to make a request for review by the NPWC Director on or before January 4, 2021 via email.
Because of these system changes, employers should expect a minor lag in processing for their LCAs and PERMs during the closures. We will monitor any updates and potential need to request review of PWDs filed between October 8, 2020 and December 4, 2020, in order to utilize lower corrected wage rates where possible. Employers should consult counsel for additional guidance and advice on specific cases or requests for review of wage rates.