By Attorneys Robert L. Reeves and Joseph I. Elias

The US Department of Labor (DOL) recently lost a case in federal court case that requires it to reissue approximately 4000 H-2B wage determinations. While this is a victory for H-2B employers, it is proving to be a major setback for those in the labor certification process for permanent employment also known as PERM. The DOL’s National Prevailing Wage Center (NPWC) is the DOL’s office tasked with issuing prevailing wage determinations in connection with labor certification applications. Because as a court order, the NPWC informed the public on August 11, 2011 that it is not issuing prevailing wage determinations for PERM applications. Nor, is it reviewing request for reconsideration’s or appeals to the Center Director.

The prevailing wage determination is a critical prerequisite for employers who wish to begin the recruiting stage for PERM. The determination sets the minimum required wage for the occupation in the geographic area of intended employment. If the employer feels the wage determination is incorrect the wage that is too high, it can appeal or request reconsideration of the determination. The prevailing wage determination is also required for the filing of the PERM. An employer must reference the date and wage information of the prevailing wage determination on its labor certification application. The PERM cannot be filed without it.

Employers conducting recruitment for labor certification must know what the minimum proffered wage is to be offered to any US workers who apply for the position. Without this information, recruitment is virtually impossible. If the employer offers a wage that turns out to be lower than what is assessed in the prevailing wage determination, recruitment must begin again from the beginning.

The suspension of prevailing wage determinations is a significant setback labor certification processing for employers. The suspension is expected to last at least until October 1, 2011 which is the date by which the DOL stated it could re-issue the H-2B wage determinations. But, the DOL informed the public that it will not estimate when it expects to resume processing prevailing wage determinations in connection with labor certification applications.

The DOL has stated it will not extradite prevailing wage requests. The public was also informed that applications will be processed on a first in, first out (FIFO) basis once the processes resumed.

A backlog of prevailing wage requests is already accruing at the NPWC. It is therefore critical for any employers contemplating or beginning the PERM process to file their prevailing wage requests as quickly as possible. This at least will ensure that the requests are not at the back of the FIFO queue for prevailing wage determinations.

The immigration bar has addressed these issues with the DOL for the past several weeks. It also requested that processing of prevailing wage requests be immediately resumed. Until any new action is taken by the DOL, it behooves employers to begin the as quickly as possible and secure a place in line for a prevailing wage determination.

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