DOL Announces Compliance with District Court Orders; Employers Will Be Able to File LCAs Using Previous Wage Data Starting December 9

December 4, 2020

Following the District Court ruling invalidating the recent interim final regulations promulgated by the Department of Labor (DOL) and the Department of Homeland Security (DHS), the DOL’s Office of Foreign Labor Certification (OFLC) has announced how they will comply with the court order.

According to the OFLC announcement, “the Department is taking necessary steps to comply with the courts’ orders, including making required technical changes to the Foreign Labor Application Gateway (FLAG) system, in a manner that minimizes service disruptions for customers and OFLC staff.  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. To reduce the risk of unintended system problems or errors while this occurs, employers and their authorized attorneys or agents may experience a brief delay in their ability to use the FLAG system to submit new Labor Condition Applications for Nonimmigrant Workers (LCAs), Form ETA-9035/9035E, and receive determinations on Applications for Prevailing Wage Determination, Form ETA-9141, where the Occupational Employment Statistics (OES) survey data is the prevailing wage source.”

The announcement continues to say:

• Employers may file LCAs using the OES wages in effect prior to October 8 starting the morning of Wednesday, December 9, 2020;
• Employers may file new prevailing wage requests at any time, however, the DOL will pause the processing of prevailing wage determinations for both LCAs and PERMs until December 15, 2020;
• The deadline to contest a prevailing wage determination issued during the period from October 8 to December 1, 2020 (with the invalidated higher wage system) is Monday, January 4, 2021.

We will continue to provide updates relating to this litigation and other matters on our website. If you have any questions, please contact the Weaver Schlenger team member with whom you normally work.