Following two court rulings this week blocking enforcement of a wage regulation that significantly increased H-1B and PERM wage thresholds, the Department of Labor (DOL) has responded regarding how it will comply with the court orders.

Key Points:

  • The department will comply with the court orders by reverting to the Occupational Employment Statistics (OES) prevailing wage data that was in effect before the regulation took effect on Oct. 8.
  • In order to make the necessary system updates to revert to the old the wage data, employers should anticipate delays in the coming days in filing new Labor Condition Applications that rely on OES survey data. Beginning Dec. 9, the Foreign Labor Application Gateway (FLAG) system will accept LCAs using OES survey data that was in effect on Oct. 7.
  • Employers may continue to file prevailing wage determinations, but processing of the requests has been suspended until Dec. 15. When processing resumes, the department will comply with the court orders by using OES survey data in effect Oct. 7 for determinations relying on OES data as their source.

Background: The agency issued the wage regulation on Oct. 8 as an “interim final rule” that took effect immediately without giving the public notice of the rule or an opportunity to comment before the rule became effective. The regulation dramatically increased wage minimums for permanent labor certifications (PERM) and H-1B, H-1B1 and E-3 “specialty occupation” categories. Federal judges in California and New Jersey ruled this week in favor of plaintiffs who argued that the government lacked good cause for skipping normal rulemaking procedures in violation of the Administrative Procedure Act. The judge in New Jersey issued a limited injunction to prevent the department from enforcing the rule against the plaintiffs in the case, but the judge in California ruled that the regulation must be set aside, barring the government from enforcing it nationwide.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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