On Jan 11 2010

New Prevailing Wage Process Implemented by the Department of Labor

The Department of Labor (DOL) has nationalized the process for issuance of prevailing wage determinations used in a variety of immigration applications including PERM, H-1B, H-1B1 (Chile/Singapore), E-3 (Australia), and H-2B.

Beginning January 1, 2010, employers must now apply for prevailing wage determinations to the DOL rather than the state workforce agencies (SWAs).  DOL has indicated that from January 1, 2010 through January 20, 2010 prevailing wage requests must be submitted by mail.  After January 20, 2010 DOL expects that submissions will be able to be made through the iCERT portal.

DOL issued prevailing wage determinations are a mandatory requirement for PERM applications.  The agency has advised employers to submit prevailing wage requests at least 60 days before beginning recruitment or filing an application for labor certification.  Likewise, DOL has indicated that prevailing wage requests using independent wage sources could have lengthier processing times.  As we have reported, the introduction of the iCERT system for preparation of LCAs has significantly lengthened preparation time due to technical glitches in the system.  It is therefore critical for employers to be aware of these delays, especially if they are filing PERM applications for H-1B nonimmigrant workers who are reaching the end of their fifth year of status and who wish to extend that status beyond the six-year maximum under the provisions of AC21.

In addition to processing delays, it remains to be seen if the validity periods for prevailing wage determinations issued by the DOL will be shorter than those that were issued by local SWAs.

Although prevailing wage determinations from the DOL are not required for H-1B cases, they are preferred by some employers as they provide important safe harbors.  Given the expected delays in DOL processing times for issuance of prevailing wage determinations it is critical that employers identify and begin preparing cap-subject cases for the Fiscal Year 2011 as soon as possible.

While DOL policy guidance states that there will be no changes in the way prevailing wages are determined, employers should note that the national office may take a different approach from local SWAs in determining how occupational categories and wage levels are assigned.  DOL has indicated that the national office will entertain requests for redetermination.  Redeterminations will be handled by the Office of Foreign Labor Certification.  Requests to reconsider redeterminations can be submitted to the Board of Alien Labor Certification Appeals (BALCA).  It remains to be seen how receptive the national office will be to requests to reconsider prevailing wage determinations, including the assignment of occupational categories and wage levels.