US Department of Labor (DOL) made an announcement late yesterday, Dec 3rd, 2020, stating that they are cancelling the H1B Wage Levels increase Interim Final Rule that was published by them on Oct 8, 2020. They are doing this to comply as per the recent Court Orders, where they lost the case. They gave guidance on how they plan to implement removal of the new wage levels and reverting back to the old wage data. In this article, we will cover all those details.
Background – DOL H1B, PERM Wage Levels Rule, Lawsuits
US Department of Labor (DOL) published an Interim Final Rule (IFR) called “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, 85 FR 63872” on Oct. 8, 2020. It increased the H1B, PERM prevailing wage levels as listed in below table.
|Prevailing Wage Level||H1B LCA, PERM Wage levels Before||New H1B LCA, PERM Wage levels with Regulation|
|Wage Level I||17th percentile||45th percentile|
|Wage Level II||34th percentile||62nd percentile|
|Wage Level III||50th percentile||78th percentile|
|Wage Level IV||67th percentile||95th percentile|
There were three lawsuits filed in three different courts by three different parties on this H1B Wage Levels Changes IFR. The key argument point among all of these cases was that DOL did not follow the proper comment and notice period to make the wage levels changes. Also, DOL’s use of good cause exception to implement the rule immediately was not right and their rationale does not qualify for good cause exception.
Of the three courts, two of them gave judgments on Dec 1st and Dec 3rd, 2020. The court in California cancelled the H1B Wage Levels change rule, including DHS’s H1B program changes like 1-year approvals and others. The court in New Jersey, issued a preliminary injunction to stop implementing the wage levels increase rule. US Department of Labor(DOL) is complying to the court order and thus giving this guidance on their plan to revert back to before.
Summary of the DOL’s Announcement to Cancel H1B Wage Levels Rule
- DOL is making all the required changes to cancel the wage levels rule related changes in their Foreign Labor Application Gateway (FLAG) system.
- In the FLAG system, which is used for filing H1B LCAs, they have wage source year data that is tagged as “10/8/2020-6/30/2021”. They plan to replace the same.
- FLCDatacenter Website Update : The H1B LCA wage data at https://flcdatacenter.com will be updated on December 4th 12 Noon EST time to reflect the correct prevailing wages before the recent regulatory changes.
- DOL FLAG System – Outage, Availability to File LCAs
- FLAG system will be taken down for couple of hours on December 4th, starting from 6 AM EST. The FLAG system will be back online with all the changes by 8:30 AM EST.
- If Employers, Attorneys or their Agents plan to select OES Survey as the Prevailing Wage Source for H1B LCA, they will NOT be able to submit any H1B LCAs in the FLAG system from 8:30 AM EST December 4th, 2020 until 8:30 AM, December 9th, 2020.
- Employers, Attorney and Agents will be able to use the previous wage levels for H1B before October 7th in the new system starting from 8:30 AM, December 9th, 2020
- PERM Processing – Prevailing Wage Determinations (PWD)
- OFLC’s National Prevailing Wage Center (NPWC) is temporarily pausing the processing of Prevailing Wage Determination Applications (ETA-9141).
- NWPC will start processing the PWD Applications filed using form ETA-9141 from 8:30 AM EST, December 15th, 2020. They will use the previous OES Survey Wage Data that was in effect on Oct 7th, 2020 for prevailing wage Determinations.
- Request Review of Prevailing Wage Determinations (PWD) filed recently
- If you have filed PWD recently, based on recent regulation when changed wage levels were in effect, then you can request NWPC Director to review the PWD.
- The deadline for this is January 4th, 2021.
- You can login to FLAG system and open the relevant case details and select “Request Redetermination” under the Actions tab.
- You can also email to FLC.PWD@dol.gov with case details. When you send email, add the phrase “IFR Request for Review” followed by the full case number on the Form ETA-9141.
- You may also mail in the request in physical mail to below address. You need to include the full case number in the cover letter or provide hard copy of the form ETA-9141 that was issued using the IFR methodology.
- 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
Overall, it is a really big news for many waiting to file their H1B Extensions, Transfers or PWDs. We do not know at this point, if DOL plans to publish the rule in Federal Register to seek public comments and then proceed.
What do you think of the announcement by DOL ? Share your thoughts in comments.
Reference : Official DOL Announcement Complying Court Order