Labor Department Temporarily Suspends Prevailing Wage Processing in PERM and H-1 B Cases

The United States Department of Labor (DOL), Office of Foreign Labor Certification (OFLC), recently announced that it has temporarily suspended processing of Prevailing Wage requests for most case types, including PERM Labor Certifications. The stated reason for the delay is that the DOL must comply with a court order issued in June 2011 by a United States District Court related to the reissuance of Prevailing Wage Determinations for H-2B temporary labor certification applications. In particular, the court order requires the DOL’s National Prevailing Wage Center (NPWC) to manually reissue approximately 4,000 prevailing wage determination requests, many of which require determinations of multiple locations. In light of thisruling, the OFLC has dedicated all of its resources to the completion of this task and, consequently, prevailing wage requests for other case types will not be processed at this time. The NPWC anticipates that the redetermination process should be complete by October 1, 2011.

The temporary suspension of non-H-2B prevailing wage requests will have the biggest impact on PERM processing, as a DOL-issued Prevailing Wage Determination is a requirement for the filing of a PERM Labor Certification. A PERM Labor Certification is typically the first step of the employment-based permanent residence process and, importantly, often serves as the basis for H-1 B extensions for employees who are nearing the maximum time allowed in their H-1 B status. Employers are advised to take precautions to ensure that potential delays in PERM filing do not cause a lapse in the nonimmigrant status of their foreign national employees or an interruption of employment authorization.

Seyfarth Shaw’s Business Immigration Group stands ready to assist employers in addressing these issues. We are available immediately with strategic evaluation and advice to ensure that your foreign national workforce is not hurt by this development.

By: John Quill

John Quill is a senior counsel in Seyfarth ’s Boston office. If you would like further information, please contact your Seyfarth Shaw LLP attorney or John Quill at jquill@seyfarth.com.