Due to the temporary suspension of prevailing wage determinations by the Department of Labor (DOL), processing for many PERM applications may be delayed by several months. The DOL has stated that the reason for the temporary suspension is a June 15, 2011 court order requiring it to recalculate approximately 4,000 wage determinations for the H-2B temporary non-agricultural worker program. The regulation requires these recalculations to be issued before September 30, 2011.
The PERM labor certification application is the first step for most foreign nationals who are being sponsored by their employers for permanent residency, or "green card" status. Obtaining a prevailing wage determination from the DOL is required prior to filing a PERM application.
In response to inquiries in late July 2011 on pending prevailing wage requests submitted in June 2011, employers and practitioners reported that as of late July 2011 the DOL indicated that it was temporarily suspending prevailing wage determinations and redetermination requests. Whereas as prevailing wage determinations in the past generally took 2-3 weeks, current processing delays are now approaching 90 days.
On August 18, 2011, the DOL confirmed such delays during its stakeholder's telephone call with the American Immigration Lawyers Association (AILA) and stated that it expected to complete the H-2B redeterminations by the third week of September. After the recalculations, however, it will then need to move more resources from the PERM processing to H-2B processing in order to comply with a regulatory mandate to adjudicate H-2B determinations within 30 days.
Although some employers and practitioners have recently reported receiving prevailing wage determinations for requests submitted back in early June 2011, it is unclear whether the DOL has resumed its normal review of prevailing wage requests.
How this Affects You
The delays in prevailing wage determinations can result in negative consequences for employees who are reaching there six year limit as an H-1B, or who have a child approaching the age of 21. For an employee reaching his or her six year limit, a PERM application generally must be filed at least a year prior to the six year "max out" date. For an employee whose child will be turning 21, the final stage in the green card process must be reached before the child's 21st birthday or the child will "age out" and no longer be eligible for status based on the parent. Prevailing wage delays could thus result in employees losing work authorization, or employees' children losing status, and eligibility for a green card.
Due to the uncertainty with prevailing wage determinations, we recommend that employers consider commencing the PERM process sooner than in the past for eligible employees, particularly where the employees will face a "max-out" or "age-out" situation. In addition to obtaining a prevailing wage determination, the PERM process requires pre-filing recruitment, which takes at least two months. With the current delays, the entire pre-filing process will take at least 5 months in most cases. Employers and employees should therefore plan accordingly.
Please contact our office if you have additional questions on how the prevailing wage delays affect a specific matter.
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