DOL's New Prevailing Wage System Causing Delays to PERM Process
Written by Jordana Hart   
Friday, 26 February 2010

PERM Labor Certification (LC) is the starting point in the permanent residence (green card) process for most foreign workers. The position offered in the LC must have a rate of pay at or above the prevailing wage rate. The employer must obtain a prevailing wage determination (PWD) at the start of the LC process. As of January 1, 2010, requests for PWDs must to be made through the U.S. Department of Labor (DOL) centralized office. As of January 21, 2010, the requests can be filed through the online system known as iCert. However, there are delays in the issuance of PWDs through the DOL's national office. This, in turn, is creating unusually long delays in the filing of PERM applications.

At a recent conference in Miami Beach, FL sponsored by the South Florida chapter of the American Immigration Lawyers Association (AILA), panelists stated that it was currently taking about 4-5 weeks to receive a PWD and that they expected this time frame to increase as DOL receives more requests.
 
Prior to the transition to iCert, PWD requests were submitted to the State Workforce Agencies (SWAs) in the various states. These requests were processed within widely varying timeframes with some SWAs reaching determinations the same day of the request and others taking days, weeks or even months to provide the PWD.

As of late February 2010, over a month since many of the requests were made, the DOL has reportedly not acted on any requests submitted online. Some applicants and their lawyers have received a handful of PWDs that had been requested by mail between January 1st and January 21st.

The iCert system, which also is used to process Labor Conditiona Applications (LCA) for H-1B petitions, has been plagued with delays and problems. In fact, the U.S. Citizenship and Immigration Services (USCIS) revised the system for accepting H-1B filings without certified LCAs due to iCert delays connected with H-1B LCAs.

The delay in issuance of PWDs is hafving a significantr impact on the ability to begin the required recruitment for PERM applications. There is a detailed regulatory scheme of recruitment requirements that last for a minium of 60 days prior to e-filing the PERM application, all of which have set timeframes and must be coordinated.

The PWDs have set validity periods. In the past, this ranged from 90 days to one year. If the recruitment efforts started before the PWD was issued, then the PERM case must be filed during the validity of the PWD. Alternatively, if an employer starts recruitment during the PWD validity period, the PERM case can be filed as long as the recruitment remains valid. Recruitment is valid for 180 days. Attorneys report that under the new centralized system, the PWD validity given as of early 2010 has been limited to June 30, 2010. This appears to tie in with the annual updating of the wage surveys used as a basis for the PWDs.

The delay in issuing PWs is affecting another requirements in the PERM process - the notice of posting. This notice must be posted at the location of employment for a minimum of ten consecutive business days and must contain the rate of pay. It is risky,if not outright imprudent, to move forward with this posting absent the PW.

The PWD delays are affecting many aspects of the PERM process, The notice of posting, for example, generally is coordinated with a required SWA job order, as well as the other required recruitment. The SWA job order must be placed for thirty days. These job orders contain slightly differing requirements, depending upon the state, with some requiring wage information. There is a 30-day "quiet period" after the end of recruitment. The PERM case cannot be filed until the quiet period has elapsed, which is therefore a total of at minimum 60 days.

Thus, the preparation of the PERM case, and the timing of the required steps is, in large part, dependent upon a PWD. Many employers do not want to commit the funds required for recruitment and PERM preparation without a firm determination of the wage requirement with which they agree.

The delay in the filing of a PERM case does not simply result in a slower green card process. Many H-1B workers are at the point where they need PERM cases filed in order to be eligible to extend H-1B status beyond the total six years allowed. They must have the PERM cases filed at least a year prior to the expiration of their six years of H-1B status. Without a qualifying PERM filing, these workers run the risk of having no way to remain in the United States beyond the six-year deadline.  

For now at least, H-1B workers and their employers must plan well in advance. Specifically, the PERM application should be initiated well before the end of the fifth year in H-1B status in order to allow enough time for preparation, and provide for the uncertainty in DOL processing time for PWDs.
Last Updated ( Friday, 26 February 2010 )