Version: September 14, 2011
In July, 2011, the Department of Labor (DOL) began notifying people that it had temporarily suspended the processing of National Prevailing Wage Center (NPWC) prevailing wage determinations (PWDs), redeterminations, and reviews, including prevailing wage determinations done in connection with H-1B and PERM filings. In a September 9, 2011 teleconference with NAFSA, AILA, ACIP and other organizations, DOL stated that it has resumed processing of PERM PWDs, but not H-1B PWDs. DOL also presented an action plan that estimates backlogs in both PERM and H-1B PWDs to be worked down by the second week of November, 2011 (at which time they hope to be "current," i.e., able to issue PWDs within a 60-day timeframe).
According to DOL, its NPWC PWD processing was interrupted after DOL reallocated its resources to focus on complying with a court order arising out of federal court litigation, that required DOL to issue new H-2B prevailing wage regulations, and to re-issue approximately 3,500 H-2B prevailing wage determinations, by October 1, 2011.
NAFSA, AILA, ACIP, and other organizations have informed DOL of the impact that the suspension has on H-1B and PERM filings, and have requested that DOL consider measures that would ameliorate that impact.
Note that DOL is still accepting the filing of Form ETA 9141 requests for prevailing wage determinations, but has stated that it has temporarily suspended processing them. DOL has not stated when they will resume processing. If you do receive a prevailing wage determination from the NPWC, please let NAFSA know by submitting through NAFSA IssueNet, including the date the ETA 9141 was filed, and the date the NPWC determined the prevailing wage.
Here is a brief description of how the prevailing wage determination suspension affects filings under the H-1B and PERM programs:
H-1B filings
In order to file an H-1B labor condition application (LCA), an employer must first determine the prevailing wage for the occupation in the intended area of employment, using one of the sources described in DOL’s regulations. An employer may choose to rely on:
- A determination made by the DOL National Prevailing Wage Center (NPWC), or
- An independent authoritative source, such as an independently published wage survey or the BLS Occupational Employment Statistics (OES) , or
- Another legitimate source of prevailing wage data, such as an employer-conducted or employer-commissioned salary survey
Many H-1B employers opt for using NPWC wage determinations to support an H-1B LCA, because NPWC determinations provide a “safe harbor” in the event of a DOL audit or wage investigation. That is to say, if the employer relies on an NPWC determination, DOL will presume that wage determination to be accurate for purposes of determining liability for payment of wages.
Although during the suspension employers can file an LCA on the basis of a prevailing wage source other than a NPWC determination, they will forgo this safe harbor and possibly incur expenses associated with developing alternative prevailing wage data. The decision to file an LCA on the basis of a non-safe-harbor source should be made with the advice of counsel.
Since using an NPWC determination to support an H-1B LCA is a matter of employer choice, it is less likely that specific relief such as a mandamus action would be effective in the H-1B context.
For additional information on delays regarding issuance of prevailing wage determinations and H-1B labor condition applications, consult DOL's FAQ update here
DOL has state they do not expect their backlog to be worked down until the second week of November, 2011 (at which time they hope to be "current," i.e., able to issue H-1B PWDs within a 60-day timeframe).
PERM filings
An employer is required to use a NPWC prevailing wage determination in order to file a PERM permanent labor certification application.
DOL has taken the position that simply requesting an NPWC determination is not sufficient for filing a PERM application, insisting instead that an employer cannot file the PERM application until the NPWC determination has been issued. The DOL suspension of NPWC determinations therefore creates a “Catch-22,” where the government requires a document that only it can provide, yet refuses to provide it.
Although DOL has begun working on PERM prevailing wage determination requests, they do not expect their backlog to be worked down until the first week of November, 2011 (at which time they hope to be "current," i.e., able to issue PERM PWDs within a 60-day timeframe).
Unavailability or delays in NPWC determinations will have the greatest impact on deadline-sensitive labor certification filings, in particular:
- Special Handling PERM applications for college and university teachers, which must be filed within 18 months of the beneficiary’s selection as the best-qualified candidate in a competitive recruitment. If this deadline is missed, the employer would have to re-recruit for the position.
- Employers who need to file a PERM application to take advantage of special H-1B extension of stay provisions for individuals whose labor certification applications have been pending for more than one year by the time they end their standard six-year eligibility for H-1B status.
- An employer using the standard process labor certification process for a professional occupation must conduct the required recruitment steps between 180 and 30 days before filing the PERM application. Employers who begin recruitment before obtaining a NPWC determination is issued might miss this filing window.
- Individuals who need to time begin the permanent residency process so that it is finished before their dependent children “age out” (i.e., before they turn 21 years of age, at which point those children can no longer acquire permanent residence as derivatives of the principal).
In situations 1 (special handling), 2 (extensions of H-1B status beyond 6 years), and 3 (standard labor certification recruitment), the most critical factor is when the PERM application is filed. The most critical factor in situation 4 (age out) is getting the PERM application approved as quickly as possible, so that the entire permanent residence process is concluded before the labor certification beneficiary’s dependents turn 21. The date of PERM filing is important in situation 4 only in that the sooner the PERM application is filed, the sooner the permanent residence process will be concluded.
In all cases, since a NPWC prevailing wage determination is an essential part of the PERM process, a suspension of or delay in processing such determinations may disrupt an employer’s ability to permanently fill key positions.
Employer Options
An employer has limited options to consider. Employers should discuss each of these options with counsel to develop a strategy that fits the needs of the institution.
Can DOL be compelled to act?
An employer might decide to file suit to compel DOL to issue a NPWC prevailing wage determination, or to accept a PERM filing without the determination. This would most likely take the form of a mandamus action, and would have to be done with through legal counsel after careful consideration. For a good introduction to mandamus actions, see the American Immigration Counsel’s recent resource on that topic. Since DOL has begun issuing PERM PWDs, the cause of action for mandamus may be weak.
Can an employer file a PERM application without a NPWC prevailing wage determination?
When NAFSA asked DOL if they would consider a PERM application filed without a NPWC prevailing wage determination, but with an annotation containing the date that the ETA Form 9141 prevailing wage determination request was filed, DOL stated that they would most likely consider the application “incomplete,” which is a basis for denying the application.
In cases where an important benefit might be lost if a PERM application is not filed, an employer should consult with counsel to determine whether filing the PERM application without a NPWC prevailing wage determination would set the stage for preserving rights on appeal, audit, or reconsideration, or position the employer to pursue subsequent legal action. An employer could discuss with counsel, for example, whether the following factors might strengthen the employer’s argument that relief should be granted in his or her case, despite the fact that the PERM application was filed without a NPWC prevailing wage determination:
- Does a case have a better chance of relief if the claimant can show that a failure to file would result in something more than inconvenience, e.g.: the loss of legal benefits important to either the employer or the beneficiary; expensive and unnecessary re-recruitment; other disruption of the employer’s ability to permanently fill an open position?
- Does a case have a better chance of relief if the claimant can show that they did not contribute to the emergent circumstances by waiting to the last minute, and if their expectation for the timeliness of DOL action is reasonable? For example, DOL has recommended since the inception of centralized prevailing wage determination processing that requestors submit their ETA Form 9141 at least 60 days in advance of when they need the determination, and so might DOL or a court look more favorably on a PERM application that was submitted with annotations that show it was filed only after the ETA Form 9141 had been pending for at least 60 days?
- Are there any legal arguments that support a strategy of filing a PERM application only with proof of having requested a NPWC prevailing wage determination (i.e., proof of having filed ETA Form 9141)? For example:
- Can it be argued that that despite DOL’s human-resource-based argument for suspending NPWC prevailing wage processing, it nevertheless has a legal duty to process requests for prevailing wage determinations?
- Can it be argued that if DOL has the administrative authority to suspend NPWC processing, that it also has the administrative discretion to temporarily accept the filing of PERM applications lacking a NPWC wage determination that only DOL can provide?
- Can it be argued that the regulations specifically require only that the employer request a NPWC determination [20 CFR 656.40(a)], and that although in order to use the determination the PERM application has to be filed during the NPWC PWD’s validity period [20 CFR 656.40(c)], DOL has the authority to issue a PWD post-filing, with a validity period "start date" that precedes the determination date? Along this same line of reasoning, can it be argued that DOL has the discretion to issue a PWD to cover any period between 90 days and 1 year, provided that the entire period is covered by the same source of wage data (e.g., the OES). For example, could DOL issue PWDs with a standardized start date that represents the date they first suspended processing (e.g., "June 15, 2011"), with an end date of 1 year afterwards, or the date that new OES data becomes available, whichever is sooner?
NAFSA cannot provide legal advice. Although NAFSA is following up with DOL to discuss factors and alternative interpretations such as these, currently the best strategy is to thoroughly discuss options with experienced immigration counsel.