Kristina M. Hernandez
Federal Court Vacates DHS H-1B Rule and DOL Wage Rule
On December 1, 2020, the U.S. District Court for the Northern District of California in Chamber of Commerce, et al. v. DHS, et al. vacated the DHS interim final rule, “Strengthening the H–1B Nonimmigrant Visa Classification Program,” that was scheduled to take effect December 7th and would have made significant changes to the H-1B nonimmigrant visa program. Further, the Court also vacated the DOL interim final rule which took effect October 8th and led to a heavy increase of the prevailing wage rates for the H-1B, H-1B1, and E-3 nonimmigrant visa categories for LCAs and PERMs. This huge win for U.S. companies employing H-1B workers means that both the DHS and DOL rules are now invalidated nationwide.
With regards to the DOL rule, the Office of Foreign Labor Certification (OFCL) announced an update yesterday as to how DOL is making the necessary steps to comply with the Court’s order. OFCL noted the following:
Implementation Timeframe for Filing LCAs
All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES 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.
Implementation Timeframe for Processing Prevailing Wage Determinations
OFLC’s National Prevailing Wage Center (NPWC) has temporarily paused processing pending Form ETA-9141s for use in filing LCA and PERM applications. However, employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time.
Beginning around 8:30AM Eastern Time 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 where the OES survey data is the prevailing wage source.