We previously reported
on the dramatic increases to the U.S. Department of Labor (DOL) prevailing wage data accomplished through creative recalculating that took effect immediately, without notice, on October 8, 2020, through the rarely utilized Interim Final Rule (IFR) process, as well as the proposed rule to redefine the "specialty occupation" requirement for the H-1B work visa that was set to take effect today (December 7th). We are pleased to advise that both rules have been struck down as unconstitutional in a summary judgement decision issued by the the U.S. District Court for the Northern District of California. You can read more about the court's decision here
In response to the court’s order setting aside the IFR, the DOL’s Office of Foreign Labor Certification (OFLC) announced
a timeline by which it will be updating the FLAG system to incorporate the pre-IFR wage data. Specifically, the Department must make changes to the FLAG system modules to replace the 10/8/2020-6/30/2021 wage source year data that was implemented under the IFR with the OES prevailing wage data that was in effect on October 7, 2020. It also set forth details on how to seek a redetermination of any prevailing wage determinations issued in accordance with the IFR wage system.
Prevailing wage applications for PERM labor certifications can be filed immediately and will be adjudicated using the pre-IFR wage data. New Labor Condition Applications (LCAs) for H-1B, E-3, and H-1B1 nonimmigrant visa petitions can be filed after 8:30 am on Wednesday, December 9 using the reinstated pre-IFR wage data.
For those prevailing wage determinations that were already issued using the IFR wage data, employers may seek a redetermination between now and 1/4/2021 despite the usual 30-day deadline in order to receive a new determination based on the pre-IFR wage data.