Blog : PERM Labor Certification

Delays in Prevailing Wage Determination

The Department of Labor (DOL) has temporarily suspended the issuance of Prevailing Wage Determinations (PWDs) for H-1B petitions and PERM Labor Certification Applications. To date, the DOL has not committed to a date it will resume prevailing wage processing.

The delay is due to a federal court mandate that requires DOL to reissue PWDs for approximately 4,000 H-2B temporary non-agricultural worker petitions using a revised wage methodology in line with new federal regulations. To comply, DOL has dedicated all its resources to H-2B cases, and suspended PWD issuance for all other cases. DOL estimates that they will complete the H-2B cases by October 1, 2011.

The delay particularly affects the filing of PERM applications, the first step for foreign nationals to obtain permanent residency through employment. A PWD is needed for all PERM applications before it can be filed and involves the issuance of a wage level determination according to the job code and location of an occupation. The delay could result in difficult timing issues for foreign nationals who need to extend their H-1B petitions beyond the sixth year. Also, it may negatively impact children of foreign nationals who are close to aging out. Employers may also need to rerun advertisements if they are unable to utilize existing recruitment.

The DOL has not commented on how it will handle these issues for employers. The American Immigration Lawyers Association (AILA) has reached out to DOL to resume processing of PWDs and address the potential ramifications of this delay. We will provide you with additional updates as we receive new information.

Source: Minette Kwok, Partner, Minami Tamaki LLP’s Immigration and Nationality Law Practice