The U.S. Department of Labor (DOL) recently announced that it would temporarily suspend its processing of prevailing wage requests for permanent labor certifications (PERMs) in order to comply with a court order, issued by the U.S. District Court for the Eastern District of Pennsylvania, implementing the court’s August 30, 2010 decision in CATA v. Solis. As a consequence of the court order, the DOL advised that it would be required to reissue approximately 3,500 H-2B wage determinations and to divert most of its prevailing wage resources to these cases to abide by the terms of this court order. The DOL initially advised that the processing of PERM prevailing wage requests would likely resume no earlier than August 31, 2011, and could be suspended until September 30, 2011.
Consequences for the PERM Process
The DOL’s announcement impacts all foreign nationals seeking permanent residence through the PERM process.
Since many employers seek a prevailing wage determination from the DOL prior to initiating the required recruitment steps for a PERM, delays in DOL-issued prevailing wage determinations will cause corresponding delays in the commencement of the recruitment steps. Such delays also may impact the ability of certain foreign nationals in H-1B status to remain in the United States. Many H-1B workers, nearing the end of their six-year stay in H-1B status, must have their PERM cases filed at least one year prior to the expiration of their six years in H-1B status in order to be eligible to extend their H-1B status beyond the initial six years.
Current Status of Prevailing Wage Determinations
In a recent update, the DOL reported that it expected to be current on H-2B prevailing wage determinations by mid-October and that, after H-2Bs are current, resources would be shifted to focus on PERM prevailing wage requests. The DOL committed to have PERM prevailing wage requests current (processed within 60 days of filing) by October, 2011.
Prevailing wage determination processing for PERM labor certifications has now resumed at a slow pace: as of mid-October 2011, we are receiving PERM prevailing wage determinations for requests that were submitted in mid-August 2011.
At this time, the DOL has not released any further information. Ogletree Deakins is closely monitoring the processing of prevailing wage determinations.
