DOL Not Issuing Prevailing Wages: PERM Delays

The U.S. Department of Labor (DOL) is not issuing Prevailing Wage Determinations (PWDs) as of this writing. The PWD is a required step in the PERM labor certification (LC) process, and the DOL stopped issuing them in July 2011. Thus, the entire system for initiating PERM LCs has been disrupted. There is no certainty as to when the DOL will return to their normal issuance of PWDs. This does not impact PERM cases that have already been filed; the problem relates solely to the ability to file new PERM cases.

Source of PWD Problem: H2B Wage Determinations

The reason the DOL National Prevailing Wage Center (NPWC) has temporarily halted the PWD process is that they are focusing their efforts entirely on reissuing H2B wage determinations. This is required due to a lawsuit filed against the DOL pertaining to delays in connection with H2B worker wage level regulations.

The U.S. District Court for the Eastern District of Pennsylvania found on June 15, 2011 that the DOL had violated the Administrative Procedures Act and the Immigration and Nationality Act by delaying the effective date of regulations governing H2B wage levels. As a result, the DOL was ordered to set a new effective date for an H2B wage determination regulation. This has been done, but this now means that the DOL must reissue 4,000 wage determinations in H2B cases.

Important Role of PWD in PERM Cases

It is necessary to obtain a PWD in every PERM LC case. Moreover, the timing of the PWD is vital to the PERM procedures. These timing requirements were discussed in our July 22, 2011 NewsBrief, BALCA on Validity of Prevailing Wage Determinations. PERM cases must either be filed during the validity of the PWD or the required recruitment must be initiated during the validity of the PWD.

Thus, without PWDs, cases simply cannot be filed. There is no alternative to this process. Moreover, employers are naturally reluctant to initiate recruitment without assurance that the PWD will be issued. The PERM process has regulations regarding the validity period of the recruitment efforts. If recruitment starts without a PWD, therefore, and there is no way to get a PWD, the advertisements will “expire” and the case cannot be filed. Furthermore, the wage level is needed in portions of the recruitment process, such as the posting notice.

Impact on Employers and Employees: H1B Extensions and More

The impact of protracted delays in the issuance of PWDs will be significant. Many employers need to file PERM LCs for their employees, in order to allow the employees to remain permanently in the United States, as well as to extend their H1B nonimmigrant statuses beyond the six year limitation. Without these filings, many temporary workers will simply not have options available to remain legally in the U.S.

The delays created by the inability to obtain PWDs are likely to result in the increased need to rely upon some of the strategies outlined in our April 8, 2011 NewsBrief, Filing Labor Certifications During Sixth Year of H1B. The longer this problem persists, the greater the chaos created for both employers and employees.

Timeframes Uncertain

The DOL has not given any specific expectation as to when the processing of PWD requests will resume. The timeframe for processing the 4000 H2B wage determinations has been addressed. The DOL states that they will be able to reissue the H2B determinations before October 1, 2011, but would not be able to complete the process before August 31, 2011. It is not clear if they will continue to ignore PERM PWD requests until the H2B wage determinations are completed.

No Exceptions, No Expedite Requests

The DOL has a firm policy of not expediting any case, and adhering to a goal of first-in/first-out adjudications. In addition to not making any exceptions to the “no PWD” policy currently in place, therefore, they will not expedite such requests for any reason, once processing resumes.

There are ongoing efforts to address this situation with the DOL. We at the Murthy Law Firm are working closely with this issue, and will provide updated information to our readers as it becomes available. We are available to guide individuals and companies regarding options and any potential fallout they may face as a result of the DOL’s inaction on PWD requests.

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