On Friday, December 4, 2020, the U.S. Citizenship and Immigration Services (USCIS) announced that it will not implement its Strengthening the H–1B Nonimmigrant Visa Classification Program interim final rule (“H-1B Rule”) that was scheduled to take effect on December 7, 2020.
Similarly, on December 3, 2020, the U.S. Department of Labor (DOL) also announced that it will withdraw the use of its new wage system and revert back to the pre-October 8, 2020 prevailing wages. DOL had previously implemented interim final regulations – Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States interim final rule (“Wage Rule”) on October 8, 2020. DOL’s Wage Rule introduced significant changes to the prevailing wage methodology for the Permanent Employment Certification, H-1B, H-1B1, and E-3 visa programs. As a result of this rule, some prevailing wages increased by over 50%, while over 18,000 positions ended up with default wage of $208,000/year.
DOL’s announcement highlights:
OES Prevailing Wage Data
- As of December 4, 2020 (12:00 pm ET), the Foreign Labor Certification Data Center was updated to reflect prevailing wage data for each SOC and area of intended employment with validity dates from July 1, 2020 through June 30, 2021.
Labor Condition Applications (LCA)
- LCAs submitted through December 4, 2020 (5:59 am ET) will be processed without delay.
- Beginning Wednesday, December 9, 2020 (8:30 am ET), employers and their authorized attorneys or agents can submit new LCAs using the OES survey data that was in effect on October 7, 2020 — prior to the Wage Rule implementation.
Prevailing Wage Determinations (Form ETA-9141)
- Employers and their authorized attorneys or agents may continue to file new requests for a prevailing wage determination at any time. However, the National Prevailing Wage Center (NPWC) is temporarily suspending the processing of pending prevailing wage determination requests for LCA and PERM labor certification applications.
- Beginning Tuesday, December 15, 2020 (8:30 am ET), NPWC will resume processing all pending and new prevailing wage determination requests 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.
- Employers may submit a request to NPWC on or before January 4, 2021 for review of a prevailing wage determination (PWD) that was issued between October 8, 2020 – December 1, 2021 under DOL’s Wage Rule.
Both announcements came after the U.S. District Court for the Northern District of California set aside both USCIS’ H-1B Rule and DOL’s Wage rule on Tuesday, December 1, 2020.
In other news, a second federal judge ruled against DOL’s Wage Rule in the case of ITServe Alliance, Inc., et al. v. Scalia, et al. (12/3/20). The judge notes:
[T]he Court finds that Plaintiffs have met the standard necessary for the issuance of a preliminary injunction. Therefore, Plaintiffs’ motion for a preliminary injunction will be granted, thereby enjoining Defendants from enforcing the relevant regulation against Plaintiffs during the pendency of this civil action, or until the Court issues a final judgment on the matter.
However, the ruling was limited to DOL’s enforcement of its Wage Rule against the plaintiffs in the case only.
