DOL Provides Further Guidance on Suspension and Anticipated Resumption of Its Processing of Prevailing Wage Requests for PERMs

by Morgan Lewis
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The U.S. Department of Labor (DOL) announced that it will suspend its processing of prevailing wage requests for permanent labor certifications (PERMs) in order to comply with the U.S. District Court for the Eastern District of Pennsylvania’s June 15 order implementing the court’s August 30, 2010 decision in CATA v. Solis. DOL has advised that processing will resume no earlier than August 31, 2011 and could be suspended until September 30, 2011. This decision impacts all foreign nationals seeking permanent residence through the PERM process, from lower-skilled workers through highly skilled engineers and researchers in positions requiring advanced degrees.

As many employers seek a prevailing wage determination from DOL at the beginning of the PERM process, prior to initiating the required recruitment steps for a PERM, DOL’s action may effectively halt the initiation of new permanent residence processing for foreign nationals seeking green card sponsorship or force employers to change recruitment practices in well-established PERM labor certification programs. In addition, the timing of the filing of a PERM is crucial to the ability of certain foreign nationals in H-1B status to remain in the United States. Thus, the additional delay in the processing of prevailing wage requests may well necessitate strategic contingency planning for employers with H-1B workers who are in or approaching the final year of H-1B status, and for whom the employer has not yet initiated the PERM process. The delay may also impact foreign nationals in other nonimmigrant categories who are reaching the end of their maximum permissible stay in the United States.

Background

A PERM is a DOL-mandated test of the U.S. labor market that is frequently required before an employer may offer a position to a foreign worker on a permanent basis. As a part of the PERM process, an employer is required to request a DOL-issued prevailing wage determination for an occupation in which the employer proposes t employ a foreign worker on a permanent basis. DOL issues prevailing wage determinations to ensure that the wages of U.S. workers are not potentially depressed by lower-paid foreign workers. Employers are required to test the labor market by documenting its efforts to hire U.S. workers using specific means of recruitment established by DOL. The employer is required to offer qualified U.S. workers identified through recruitment the higher of the prevailing wage, or the actual wage that the employer pays to workers in similar positions in the area of intended employment.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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