DOL Temporarily Suspends Prevailing Wage Determinations: Impact on PERM and H-1B Filings

Many of our clients and readers are by now aware of the delays associated with the Department of Labor (DOL) processing requests for prevailing wage determinations.   Unfortunately, DOL has confirmed that they have temporarily suspended the processing of all regular prevailing wage determination requests until DOL meets its obligations under a court order to re-process approximately 4,000 H-2 B prevailing wage determinations.

Background of the Need to Reprocess H-2B Prevailing Wage Determinations

Pursuant to a June 15, 2011 ruling, the U.S. District Court for the Eastern District of Pennsylvania ordered DOL  to reissue approximately 4,000 H-2B prevailing wage determinations in order to accurately reflect the new H-2B wage rates that will apply for H-2B employment beginning on or after September 30, 2011 (the new government fiscal year). The June 15, 2011 court order is related to an August 30, 2010 decision in CATA v. Solis, where the District Court ordered DOL to put in place new H-2B prevailing wage rules.

DOL Effectively Suspends Review of All Regular Prevailing Wage Requests by Shifting All Resources

As of a few days ago, DOL has confirmed that they have shifted all of its relevant Office of Foreign Labor Certification (OFLC) resources towards complying with the June 15 court order.   By making this decision, in effect, DOL has temporarily suspended the processing of all non-court mandated prevailing wage determinations.   While it is possible that DOL would switch some of its resources back to processing regular processing prevailing wage determinations, it is possible that no prevailing wage requests would be processed until DOL clears the H-2B backlog.

A federal rule dated as of August 1, 2011 states that DOL should be able to process all H-2B prevailing wages by October 1, 2011.  DOL has also indicated that they plan on completing all 4,000 H-2B prevailing wages by August 31, 2011.   As a result, we should expect (somewhat) normal processing of prevailing wage determinations to return during the month of September.

PERM and H-1B Filings to be Affected and Possibly Delayed

As a result of the prevailing wage suspension, many PERM and H-1B cases are put on an temporary, but highly undesirable, hold.   Even if DOL returns to normal prevailing wage processing as soon as September 1, there would be a significant backlog of pending regular prevailing wage requests.    Many foreign nationals must file their PERM/H-1B applications in order to be able to fit within AC21 guidelines, expiring recruitment of other urgent reasons.    We hope that DOL would be able to designate and allow some prevailing wages to be processed in order to allow foreign nationals with deadlines to make timely filings.

Additionally, and assuming that DOL returns to normal processing in September, there would be a high number of prevailing wage determinations issued which, in a few weeks or a couple of months, would result in a higher than normal volume of PERM filings.   As a result, we expect that PERM processing times to increase over the next 4-6 months.

We would continue monitoring this situation and provide updates as they become available.   Please feel free to subscribe to our weekly newsletter or contact us if our office can be of any assistance.