DOL will comply court orders and rollback prevailing wage levels to pre-October 8, 2020 wage levels for LCA and PERM filings

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Pasricha & Patel

U.S. Department of Labor’s Office of Labor Certification (OFLC) has announced that it will begin to comply with the recent U.S. District Court rulings regarding DOL’s prevailing wage rule.

Specifically, the following steps are being taken by the OFLC starting on Friday, December 4, 2020 and lasting through the next few days and weeks:

  • The OFLC will perform technical changes to the FLC Online Data Center so that the correct/pre-October 8, 2020 prevailing wage data for each SOC (Standard Occupational Classification) and area of intended employment through June 30, 2021 will be updated at the FLC Data Center website starting at approximately 12 p.m. EST (noon) on December, 4, 2020.
  • Timeline for Filing LCAs:
  • All Labor Condition Applications (LCAs)/Form ETA-9035/9035Es submitted using the FLAG system through 5:59 AM Eastern Time on December 4, 2020, where the OES (Occupational Employment Statistics) 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.

So, that means for now, if the employer and their authorized attorneys or agents wishes to submit LCA/ETA 9035/9035Es, they can , but they have to use alternative wage surveys because the OES survey data will not yet be available for use in completing the LCA until the morning of December 9, 2020.

  • Timeline for Processing Prevailing Wage Determinations:
  • OFLC’s National Prevailing Wage Center (NPWC) has temporarily stopped the processing of all pending Form ETA 9141s that are used in filing LCAs and PERM applications. But employers and their authorized attorneys and agents should continue to submit new requests for PWD without disruptions.
  • Then, starting approximately on 8:30 am Eastern Time on December 15, 2020, the NPWC will re-start the processing of all pending and new Form ETA 9141s and it will be using the OES survey data that was in place already on October 7, 2020 for prevailing wage determinations.

So, this means there will be a temporary delay in the issuance of PWD results. But the submission of PWDs online should not be disrupted due to the wage data adjustments.

  • DOL has also announced that any employer who wishes the NPWC to review any PWDs that were issued by using the 10/08/2020 – 06/30/2021 wage source year data that was in place during the Interim Final Rule originally introduced by the DOL can submit a request for review by the NPWC director in accordance with 20 C.F.R. § 656.14 ON OR BEFORE January 4, 2021,and such requests for review will be considered timely made to NPWC. With this DOL announcement, this likely means that the DOL will not be appealing the U.S. District Court’s ruling to roll back the prevailing wage level changes that were originally introduced without first following the notice and public comment rulemaking procedures.

However, as with any news concerning immigration and its related developments, the situation remains fluid and we continue to encourage readers to check back with our website for any latest news and updates.

Should you have any questions regarding this latest development or any specific questions, please contact our office to schedule formal consultation so that we can assist you further.