On December 1, 2020, the U.S. District Court for the Northern District of California found that the Department of Labor (DOL) failed to show good cause in forgoing advance comment for its October 8th wage guidance. The court’s order sets aside that guidance, which altered the prevailing wage methodology and made green card, H-1B, H-1B1, and E-3 employment more expensive for many employers. On December 3, 2020, the U.S. District Court for New Jersey issued a similar preliminary injunction applying to the plaintiffs in that case.
To comply with the courts’ orders, DOL will update the application system used for labor certifications and replace the recently implemented wage data (10/8/2020-6/30/2021) with the wage data in use on October 7th.
Updates began Friday December 4. There will be some disruptions to services while they are completed. Beginning December 9th employers and attorneys will again be able to file new Labor Condition Applications (LCAs) where the Occupational Employment Statistics (OES) survey data is the prevailing wage source. DOL will resume processing Prevailing Wage Determinations (PWDs) for use in the PERM step of immigrant petitions on December 15th.
Using their FLAG account, employers may apply to have DOL review prior labor certifications that were filed while the altered wage levels were in effect. Such requests must be made before January 4th.