Prevailing Wage Determination Litigation FAQs

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Prevailing Wage Determination Litigation FAQs

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Prevailing Wage Determination Litigation FAQs

1. Why are we suing? What is this case about?

We will represent individuals who have filed Forms ETA 9141, Application for a Prevailing Wage Determination, prior to October 1, 2022. We will be suing the Office of Foreign Labor Certifications and the Department of Labor because the OFLC is failing to work on these applications in a timely manner. According to the most recently published data, OFLC is currently processing Forms ETA-9141 that were filed in January 2022. This twelve-month processing time is up from the office’s historic average of 2-4 months from FY 2016 through FY 2020.

The failure to adjudicate these applications in a timely manner adversely impacts employers’ ability to hire needed employees, threatens those in H-1B classification with losing their status and adversely affects the ability of institutions of higher education to meaningfully take advantage of the special handling procedures implemented to ensure the most qualified professors are hired.

Federal agencies have to do their job with due regard to the necessity and convenience of the interested parties. We will ask a federal judge to order OFLC to immediately adjudicate our plaintiffs’ PWD requests.

The primary goal for this case is to file quickly and push for discovery. We do not anticipate the need for a preliminary injunction. Our secondary goal is to push processing times of PWD requests back down to their historical levels.

2. Who are the lawyers filing these cases?

This case is being filed by IMMpact Litigation, a joint venture of the law firms Kuck Baxter in Atlanta, Siskind Susser in Memphis, Joseph & Hall in Denver, and Bless Litigation in Boston. The firms have some of the most experienced immigration lawyers in the country and have now litigated together in more than 30 mass federal cases. IMMpact received the 2022 American Immigration Lawyers Association Litigation Award and the American Bar Association’s James E. Keane Award for the innovative use of technology in managing litigation.

3. What is the legal basis for the suit?

The Department of Labor and the OFLC, as administrative agencies, are required to follow the Administrative Procedure Act (“APA”). The APA, 5 U.S.C. § 555(b), provides: “With due regard for the convenience and necessity of the parties or their representatives, and within a reasonable time, each agency shall proceed to conclude a matter presented to it.”

Where an agency fails to act in a reasonable time, 5 U.S.C. § 706(1) permits a court to “compel agency action unlawfully withheld or unreasonably delayed.”

There is a strong case to be made for the unreasonable delay of PWDs. Processing times have increased at least four-fold in the last three years and there is strong evidence that OFLC does not process PWDs first in, first out.

4. Who is eligible to participate?

Anyone who filed an ETA-9141 application before October 1, 2022, is eligible to participate in this case.

5. What is the fee to join this case?

The legal fee to join the lawsuit is $5000 for every initial prevailing wage request and $500 for each additional prevailing wage request filed by the same company/employer.[1] The fee is a one-time charge, and we will not be billed for additional expenses and legal fees. The fee is due at the time of signing the engagement letter with IMMpact Litigation.

Once the complaint has been drafted and filed with the court, all fees will be considered earned, and no refunds will be issued after that point.

6. Is this case being handled as a class action?

We have made the decision not to handle the case as a class action because we believe the process of certifying a class will slow down our efforts, and we may have less flexibility in issuing PWDs to our plaintiffs.

7. What are the venue options?

There are at least three options for venue of the PWD litigation. Chicago is where the DOL adjudicates prevailing wages, and the U.S. District Court for the Northern District of Illinois/7th Circuit is a favorable venue. Alternatively, venue is appropriate where an employer maintains a residence/headquarters (9th Circuit locations are terrific), and we always have the alternative of Washington, D.C., which is not currently our favored choice.

8. What remedy is the lawsuit seeking?

We seek the immediate issuance of PWDs for our clients. We believe the government will speed up the completion of PWDs well before we get in front of a judge.

9. Will there be a risk of retaliation if I participate in the case?

No. We seek a commonsense solution to a recognized crisis. We will act professionally and seek to work with the government to resolve the litigation on terms acceptable to both sides.  In our experience, people and employers who file lawsuits receive more favorable, fair, and respectful treatment from federal agencies moving forward.

10. What are the odds of success?

Litigation is unpredictable by its nature, but the delays on PWDs have reached a crisis level. We are aware of one court that has ordered the immediate issuance of PWDs, and we believe our arguments are strong for relief on a broad scale.

11. How will communications work?

We will have periodic live streams to brief plaintiffs on the progress of the case and answer questions and we send out emails to clients when there is news on the case. We do NOT have the ability to discuss your individual case situations and you are not hiring us as your individual immigration lawyer. You should be hiring a lawyer on an individual process if you need this type of assistance, and you are welcome to hire any of the three firms co-counseling on this case if you need to talk to an immigration lawyer and do not have counsel already. Links to each firm are at www.immpactlitigation.com. 

12. How long will it take to get results?

We should see results soon after the case is filed. The government often “moots out” cases by approving their cases quickly. The government will have 60 days from the date of service to respond to our complaint. For any remaining Plaintiffs, we will determine whether settlement is achievable and then proceed to litigate the case on the merits through the filing of a motion for summary judgment.

[1] Employer is defined by reference to a particular EIN. Every employer with a different EIN will be considered a separate plaintiff in the lawsuit.

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