Prevailing Wage Determinations Suspended

The Department of Labor’s National Prevailing Wage Center (NPWC) currently is not issuing Prevailing Wage Determinations (PWDs), nor are they reviewing requests for reconsideration or appeals to the Center Director. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in 3-4 weeks. 
These processes are on hold at this time as the NPWC is required to reissue approximately 4,000 H-2B wage determinations, to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011.

It is unclear how long the suspension will last. In the rule published on August 1, DOL indicated that while they will be able to reissue all of the required H-2B wage determinations before October 1, they also stated that DOL could not reissue all 4,000 required H-2B wage determinations before August 31, 2011. DOL has not issued any estimate on when they will resume processing prevailing wages.

The NPWC is now sending out the following revised message regarding prevailing wage determinations:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

The June 15, 2011 court order stems from the August 30, 2010 decision in CATA v. Solis, where the district court ordered DOL to promulgate new H-2B prevailing wage regulations.

Updated PERM processing times as of 4/25/11

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of April 25, 2011.  The processing times, according to DOL, are as follows:

• Regular processing:  DOL is processing PERM applications filed in March of 2011. 
• Audited applications: DOL is processing PERM audits which have a priority date of December 2009. 
• Appealed applications:  DOL is processing PERM appeals which have a priority date of September 2008.  
• “Government error” appealed applications: DOL is current on these cases meaning a 30-45 day processing time.

Here is the link to the DOL page with the processing times for more information: http://icert.doleta.gov/#fragment-2

New iCert Department of Labor Systems Leads to Frustration with Government Processing

Earlier this year, the Department of Labor announced that it was revising the system that handles the labor condition application (LCA) associated with the H-1B petition.  Previously, employers (and their attorneys), could submit a Labor Condition Application online and it was immediately processed and certified.  The certified LCA must be included with the H-1B application.

The new system, called the iCert portal, now requires that employers register in the system.  Attorneys can then create their new subaccounts to submit applications on behalf of the employers.  This new system is riddled with problems.  Instead of instantaneous approvals, the Department of Labor (DOL) has promised adjudication in 5-7 business days.  This adds an additional 1-2 weeks of processing time which is frustrating for employers who hire new candidates and need for them to start working immediately.   Further, many of these employers have unmatched federal employer identification numbers (FEIN) which leads to an immediate denial and for the employer to wait while the Department of Labor verifies the FEIN.  Lastly, sometimes after waiting 5-7 business days, the application is denied for no apparent reason, forcing the attorney or employer to refile and wait an additional 5-7 days. 

Why does the government need to “fix” a system that was never broken?  The Department of Labor was originally involved in the immigration system to protect US workers.  Instead, it has added one more layer of bureaucracy into an already murky highly nonsensical process.  As I’ve said to my clients, you shouldn’t need an attorney to assist you with immigration matters, but you do.  This is why.