DOL Prevailing Wage Determinations Suspended; PERM Impacted

Thursday, August 11th, 2011

The U.S. Department of Labor (DOL) has confirmed that “the processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended.” This will impact the filing of PERM applications. Indeed, a prevailing wage determination by the DOL is a necessary antecedent to filing any PERM application for employment-based permanent residence.

The temporary suspension is the result of the DOL’s reallocation of all of its Office of Foreign Labor Certification (OFLC) resources towards satisfying a June 15th court order by the United States District Court for the Eastern District of Pennsylvania to reissue approximately 4,000 H-2B wage determinations, to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011. The June 15, 2011 court order stems from an old August 30, 2010 decision in CATA v. Solis, where the district court ordered DOL to promulgate new H-2B prevailing wage regulations.

It is unclear how long the suspension of prevailing wage determinations will last. The suspension is temporary. For now, the DOL has apparently made the improvident decision to devote all of its OFLC resources towards complying with the June 15th court order. Processing will resume as soon as full compliance with the court order has been completed by the DOL. In the federal rule published on August 1, DOL indicated that while they will be able to reissue all of the required H-2B wage determinations before October 1. However, they also stated that DOL could not reissue all 4,000 required H-2B wage determinations before August 31, 2011. Thus, we can extrapolate that the suspension — if they are to stand firm with their decision against the use of any of its resources toward their other responsibilities here — would last at least until August 31, 2011, but should not last beyond October 1. That said, there is no way at this point of knowing if the DOL will resume sooner or later; DOL has not actually issued any notice on when they will resume the processing of prevailing wage requests, redeterminations, or reviews. Stay tuned.  Also, when the suspension is lifted, presumably there will be a backlog of prevailing wage requests, redeterminations, and reviews that will cause a delay in processing. Moreover, DOL’s policy is that they will not expedite, and applications will be handled on a first-in, first-out basis in all cases. For what its worth, the DOL states that they “continue to encourage all requestors to submit their ETA Form 9141 [prevailing wage determination requests] at least 60 days in advance of the employer’s initial recruitment efforts.”

American Immigration Lawyers Association (AILA) liaisons have been in communication with the DOL for the past several weeks about the prevailing wage delays (as well as other problems related to the new SOC codes introduced on July 1), and has forwarded specific requests for guidance and information to the DOL. As Chair-Elect of the AILA-DC Chapter, I am aware that AILA has also asked that the DOL immediately resume the processing of all prevailing wage requests, as suspension of prevailing wage determinations prevents employers from filing any PERM applications. Moreover, AILA has contacted the DOL for additional information on steps it is taking to comply with the court order, including how long it will take to reissue the H-2B wage determinations, and the short-term, as well as long-term, impact of the order on prevailing wage processing times.

The DOL will be holding a call with AILA liaisons and other stakeholders next week on prevailing wages, and we hope that the DOL will be able to provide some estimate on prevailing wage determination processing times, as well as whether any relief may be available for PERM cases that must be filed due to AC-21 requirements, expiring recruitment, or other reasons.

Please stay tuned for as we gather further information from the DOL on prevailing wage processing.

One Response to “DOL Prevailing Wage Determinations Suspended; PERM Impacted”

  1. [...] we reported that the U.S. Department of Labor (DOL) confirmed that “the processing of Prevailing Wage [...]