The U.S. Department of Labor (DOL) has stopped processing of all prevailing wage requests, in response to orders from a federal district court to re-issue new prevailing wage determinations (PWDs) for certain H-2B nonimmigrant visa applications. DOL is required to reissue approximately 4,000 H-2B wage determinations. On August 1, DOL announced that they could not reissue all the required H-2B PWDs before August 31, but confirmed that they would do so by October 1. It is unclear how long the suspension will continue, as DOL has not revealed how many of the 4,000 H-2B wages it has already processed, or when DOL expects to finish. On its website, DOL continues to instruct employers that prevailing wages should be requested “at least 60 days before” the planned start date of any PERM recruitment.

Background: DOL issues PWDs to support various visa categories, including H-2A agricultural workers, H-2B temporary workers, H-1B professionals, and permanent labor certification applications (PERM). All PWDs are issued by a single office, and are normally processed on a first-in, first out (FIFO) basis, regardless of which type of PWD is requested. A DOL-issued PWD is not required for filing an H-1B application, but a PWD is required before a PERM application can be filed.
Given that prevailing wage requests have been pending at DOL since early June 2011, and DOL generally estimates 60 days to issue the PWD, it would appear that PWDs may now take 90 days or longer to issue. The American Immigration Lawyers Association (AILA) has formally requested that DOL resume processing of prevailing wages requests, due to the significant impact the prevailing wage suspension has on employers preparing PERM applications, and on the beneficiaries of PERM applications. While DOL has not yet provided AILA any specific guidance, we believe DOL guidance will come in the near future.

Jackson & Hertogs is closely monitoring the situation, and we continue to submit PERM prevailing wage requests to DOL. However, the increased timeframe for PERM PWDs may impact all stages of PERM recruitment, as PERM recruitment can only be safely conducted after a PWD has issued. Therefore, PERM applications in preparation that have not yet been issued a PWD may experience delays before filing. PERM cases that have already received satisfactory PWDs from DOL are not impacted. Similarly, the suspension of issuing PWDs has no impact on any filed PERM application.
Jackson & Hertogs will provide further updates as news develops.

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