Complying with the December 1st, 2020 order issued by the U.S. District Court for the Northern District of California setting aside the Interim Final Rules (IFRs), both DOL and USCIS issued updates today.
The DOL IFR, Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States, was published on October 8, 2020, and went into effect immediately. The DHS IFR, Strengthening the H-1B Nonimmigrant Visa Classification Program, which aimed to revises the definition of the term “specialty occupation,” among other changes to the H-1B regulations, was scheduled to go into effect on December 7, 2020.
DOL UPDATE:
The DOL announced today that it is taking necessary steps to comply with the courts’ orders, including making required technical changes to the Foreign Labor Application Gateway (FLAG) system. Specifically, the DOL will 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.
Implementation Timeframe for Filing LCAs
- 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.
DHS/USCIS UPDATE:
Formally acknowledging that the December 1st order prevents the DHS IFR from taking effect, today USCIS issued an alert notifying public that it will fully comply with the court’s decision.