Breaking News: DOL has issued Guidance on Implementation of OES Wages in Compliance with District Court Orders
In response to two separate District Court Orders, Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331 and ITServe Alliance, Inc., et al. v. Scalia, et al, where the District Courts invalidated interim regulation that significantly changed the prevailing wage methodology for H-1B, H-1B1, E-3 visa programs and Perm Program, the U.S. Department of Labor has issued formal guidance on how they will comply with these court orders.
On December 4th, 2020, the Department will begin making the required technical changes to the Foreign Labor Application Gateway (FLAG) system, with full operational compliance to file Labor Conditions Applications (LCA) by December 9th, 2020.
Implementation Timeframe for Filing LCAs
- All Form ETA-9035/9035Es submitted using the FLAG system through 5:59AM Eastern Time on December 4, 2020, where the OES survey data is the prevailing wage source, will continue to be processed and issued a final determination without delay.
- 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.
We will continue to monitor the compliance guidance and the upcoming technical changes and will post updates accordingly.