Department of Labor

DOL Delays Issuance of Prevailing Wage Determinations

In an effort to comply with an order from the U.S. District Court for the Eastern District of Pennsylvania, the Department of Labor (DOL) suspended issuance of new prevailing wage determinations and redetermination requests received after June 15, 2011. The National Prevailing Wage Center (NPWC), issued a formal statement noting that the DOL's Office of Foreign Labor Certification confirmed that all of their resources were focused on complying with a court order requiring them to review and reissue certain H-2B prevailing wage determinations in connection with the underlying lawsuit.

As a result, while the DOL focused its resources on complying with this court order, all prevailing wage determinations and redetermination requests submitted after June 15, 2011, experienced extreme delays in review and issuance. At the height of the delay, determinations were taking three months; practitioners are
now reporting a six to seven week wait. There is no doubt that the delay in processing created a significant backlog in formal wage issuance for several months.

This inordinate delay in processing prevailing wage requests negatively impacted many employers and employees. First, for those employers preparing labor certification applications (also known as a "PERM Application") on behalf of
foreign national employees, this delay in prevailing wage issuance significantly delayed the filing of the applications and in some instances led to stale recruitment that could not be used. For those who had to wait for a new determination it has meant a loss in recruitment, leading to increased expenses. These delays are not just an inconvenience to employers and sponsored workers; they have meant a loss in hours, an unnecessary increase in expenses and, most importantly, they have gravely impacted the H-1B employees who are nearing the end of their 5th year in H-1B status or who have children who are nearing their 21st birthday and are at risk of "aging-out" from being eligible to obtain permanent resident status through their parents.

The delays also impacted colleges and universities preparing PERM Applications on behalf of their professors using
the Special Handling provision of the Department of Labor's regulations. Special Handling allows colleges and
universities to use their own recruitment methods to test the labor market, as long as such recruitment was
conducted within 18 months of filing the PERM Application. The Special Handling provision is meant to not only
help universities and colleges save on the costs of a second recruitment effort, but also to streamline the process
of permanently retaining quality foreign national professors. For those positions that are nearing the expiration
of the 18 month rule, the delay in prevailing wage determinations will likely render the Special Handling option
moot, thereby negating the entire purpose of the regulatory provision.

Employers and employees who are currently invested in the labor certification process are not the only parties
DOL's suspension impacted. Employers filing H-1B petitions often choose to obtain a formal wage determination
as a "safe harbor" for their underlying petitions. These employers will either have to forego this protection, or
wait an indefinite amount of time before filing for new or extended work authorization for their employees -
risking a break in continuity of the employment authorization of their foreign national workforce. Additionally,
H-2A and H-2B, employers who must meet very strict timelines and complete recruitment efforts prior to filing
these petitions, will see detrimental delays in their ability to comply with these recruitment efforts because a
wage determination must be issued prior to the initiation of such recruitment.

GT encourages all employers to initiate the labor certification process and any nonimmigrant processes that
require a formal prevailing wage determination as soon as possible to avoid any disruptions in work authorization
or timing that may result from the DOL's current or future processing delays.

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