Prevailing Wage Suspension Update
On Thursday, August 18, 2011, DOL held a call with AILA and other stakeholders
(NAFSA, ACIP, ABA), to provide an update on the suspension of prevailing wage
determinations and background on the lawsuit that has resulted in DOL having to reissue several thousand H-2B wage determinations. Bill Carlson, Bill Rabung, and Mada
Henderson of the Office of Foreign Labor Certification participated in the call. Harry Sheinfeld from the DOL Office of the Solicitor also participated.
Dr. Carlson stated that DOL was very aware of the impact of the prevailing wage hold and that they have been reviewing all appropriate suggestions from stakeholders.
However, in considering possible suggestions, Dr. Carlson stated that DOL was not considering any proposal that would require waiving regulatory requirements. Dr.
Carlson advised that DOL has been leveraging all available resources to process the H2B redeterminations, and that staff in the National Office and the Chicago National
Processing Center have been assisting the National Prevailing Wage Center in issuing the redeterminations. DOL indicated that it has been using certified H-2B applications to identify which cases require a revised wage. This requires DOL to pull files in Chicago
and transfer them to DC for review and issuance of the revised wage. DOL is focused on complying with the court order to reissue the H-2B wage determinations and in
minimizing delays. Harry Sheinfeld provided a summary of the H-2B litigation, including how the department found itself in the position of having to reissue several thousand H-2B wage determinations in short order.
Dr. Carlson advised that DOL had been developing plans for staffing and resources to ensure that it is able to issue all H-2B redeterminations by the third week of September
and will see if that date can be moved up. DOL did not promise a specific date when it would complete the H-2B redeterminations, only that it must issue all of them before September 30 in order to comply with the court order.
After DOL has cleared the H-2B wage redeterminations, it will then move resources to H-2B processing, as it is required by regulation to process these cases within 30 days. As these are brought up to speed, DOL will begin working on PERM and H-1B wage requests. Dr. Carlson hoped to provide a more detailed working plan for resolving the
prevailing wage hold in the next couple of weeks and will share this plan with stakeholders after it is released.
The following are stakeholder proposals to DOL during the call, and DOL’s responses.
Q: Could DOL permit some ETA 9089 PERM filings to be submitted before the prevailing wage is issued, and allow the employer to provide the wage determination
after filing? (This was asked several times, in the context of filing without a prevailing wage determination for special handling cases, for aging out children, and
for AC21 eligibility).
A: DOL’s response to this was no. The regulations require that a wage determination be issued before any ETA 9089 is filed, and they cannot waive this
requirement. DOL also indicated that any ETA 9089 filed without a wage determination would likely be denied as non-compliant.
Q: Could DOL extend the validity of previously issued ETA 9141s, particularly those issued in April, May and June, which had a limited 90 day validity? Extending the
validity dates could permit the employer to file a PERM application.
A: DOL stated that under the regulations, it is possible to file a PERM application after the prevailing wage expires, provided that the recruitment has begun after
the wage was issued. DOL indicated that it would not extend the validity of existing PWDs.
Q: What is the status of correcting the iCERT system to include ACWIA wage data?
Several occupations appear to be missing from the ACWIA wage database, which means that employers cannot use these codes on LCAs or wage requests.
A: DOL advised that it is aware of this problem but that it has tabled any solution
until it has cleared the H-2B wage redeterminations.
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UPDATE: On Wednesday, August 24, 2011, DOL Liaison received reports from members that PERM prevailing wage determinations are beginning to be received for
requests submitted in early June 2011. Additionally, AILA has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions,if DOL does not resume issuing prevailing wage determinations promptly.