With respect to the December 1, 2020 ruling set by the US District Court for the Northern District of California which set aside the Interim Final Rule (IFR), this redefined the prevailing wage system for PERMs, H-1Bs, and other visa categories. The ruling will set aside a system to replace the 10/08/2020 to 06/30/2021 wage source year data that was implemented under the IFR with the OES prevailing wage data that was in effect on October 7, 2020. Furthermore, employers can continue filing prevailing wage determinations, file LCA’s using private wage surveys from 8:30 am onwards on 12/09/2021, and LCAs using OES wage data beginning December 15, 2020.
As a result of the ruling made on December 1, 2020 with respect to the prevailing wage issue, AILA’s DOL Liaison Committee reached out to the Department of Labor’s Office of Foreign Labor Certification (OFLC) to get clarity on two questions.
Questions to US DOL and OFLC:
- Will the National Prevailing Wage Center expedite the Request for Review cases where the October 8, 2020 data was used and if not, is there any expectation of the processing times. Will it be the same as the standard Request for Review wait time which appear to be holding at October 2020?
- OFLC Response – They do not have expected processing times for the Request for Review wait, it is moving the National Prevailing Wage Center resources to manage the new surge in cases that have come in and has a team that is going to be working through these Request for Review filings as fast as they can.
- Is there any way to access the October 8, 2020 wage data? It appears to be completely erased from the system rather than it being archived. This can be problematic for stakeholders who rely on this data but did not print off any confirmation. Everything has been archived since 2007 which many may not realize that it has been pulled out completely. Furthermore, the inability to access such information may impact WHD investigations as they are no longer public.
- OFLC Response – the IFR wage data was agreed to with the Department of Justice as a condition of implementing the Court’s order and that there are no immediate plans to archive this data and make it public again.
Disclaimer
This article aims to provide new information concerning the Office of Foreign Labor Certification’s Compliance with the District Court’s ruling setting aside the prevailing wage rule. This article, under no circumstances, acts as legal advice; therefore, for any immigration questions, please contact your Attorney or the Ahluwalia Law Offices, P.C. (Team ALO).
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