H-1B & PERM Alert -- Prevailing Wages Revert to October 7, 2020 Levels
In compliance with a recent court order finding its interim final rule in violation of the Administrative Procedure Act, the U.S. Department of Labor (DOL) will revert to prevailing wages that were in effect on October 7, 2020. The DOL will implement the Court’s order in its Foreign Labor Application Gateway (FLAG) system as follows:
· H-1B employers:
o On December 9, 2020, starting around 8:30 AM Eastern Time, H-1B employers can submit new Labor Condition Applications (Form ETA 9035/9035E) for which Occupational Employment Statistics (OES) survey data is the prevailing wage source. In the meantime, employers will not be able to submit new LCAs for which OES data is the wage source.
o LCAs pending as of 5:59AM Eastern Time today, December 4, 2020, “will continue to be processed and issued a final determination without delay.” Pending cases should reflect OES wages in effect on October 7, 2020, and we urge petitioners to ensure that is the case.
o Whenever feasible, we recommend that LCAs previously certified at wage levels under the October 8th scheme should be resubmitted as soon as possible on or after December 9, 2020 to avail of the lower wage levels.
o In light of all the whipsaw changes in the H-1B category and uncertainty as to the future, we recommend that employers preemptively file an LCA for any existing H-1B employee whose status will expire on or before December 31, 2021. A H-1B extension petition can then be filed with U.S. Citizenship and Immigration Services whenever appropriate during the validity period of the new LCA.
· PERM employers:
o On December 15, 2020, starting around 8:30 AM Eastern Time, the DOL will resume processing of pending Forms ETA-9141, Application for Prevailing Wage Determination. In the meantime, the National Prevailing Wage Center (NPWC) has temporarily paused processing of all Forms ETA-9141.
o New requests for a PERM prevailing wage determination by Form ETA-9141 can continue to be filed at any time; processing will be held in abeyance for those filed prior to December 15th.
o All pending and new Forms ETA-9141 should be processed using OES wage survey data that was in effect on October 7, 2020, and we urge petitioners to ensure that is the case.
o New prevailing wage requests should be submitted as soon as possible to avail of the lower wage levels in effect on October 7th.
o Petitioners who obtained prevailing wage determinations issued under the October 8th scheme can request review by the Director of the NPWC on or before January 4, 2021.
Please let us know how we can assist with your H-1B and PERM cases.
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