The Department of Labor’s Office of Foreign Labor Certification (OFLC) announced that it is taking steps to comply with a modified order issued by the U.S. District Court for the District of Columbia in Purdue University, et al. v. Scalia, et al. and Stellar IT, Inc., et al. v. Scalia, et al., to reissue certain Prevailing Wage Determinations (PWDs) issued from October 8, 2020, through December 4, 2020, under the wage methodology for the Interim Final Rule (IFR), Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States (85 FR 63872, 10/8/20). The Interim Final Rule dramatically increased prevailing wage levels impacting the permanent labor certification (PERM) and H-1B programs without forewarning, and was immediately challenged in a series of federal lawsuits. OFLC will reissue certain PWDs issued under the DOL IFR in two phases:
PHASE I: High Priority PWDs : PWDs issued to the named Purdue Plaintiffs and Associational Purdue Plaintiffs (identified by Plaintiffs’ counsel); PWDs requested to support H-1B, H-1B1, or E-3 filings; PWDs issued that resulted in the default wage rate of $100.00 per hour or $208,000 per year; and PWDs issued for job opportunities in healthcare related occupations, as defined by the Standard Occupational Classification system codes 29-0000 and 31-0000 series.
PHASE II: Emergency Situations : Requests to reissue a PWD submitted by February 8, 2021 from employers attesting that they have an emergency situation necessitating reissuance of a PWD. An emergency situation includes the following circumstances:
PWDs issued in support of a labor market test conducted under the PERM program that is set to expire in the next 60 days;
PWDs issued to support the filing of a PERM application within the next 60 days to allow for extension of H-1B status or otherwise is required for a foreign worker beneficiary to be able to remain in the U.S. or maintain work authorization;
PWDs issued to support the filing of a PERM application where a child of a foreign worker beneficiary potentially will age out within one year; or
Any other PWD issued where the employer attests to having an emergent need for a reissuance not otherwise covered in this list.
Employers with emergency situations must affirmatively request reissuance of a PWD. Speak with your attorney to determine if you fall into this category!
Employers that have already submitted a request in response to OFLC’s December 3, 2020 announcement have been issued a PWD and do not need to resubmit a second request or take other action.