DOL Temporarily Suspends Immigration-Related Prevailing Wage Determinations
The U.S. Department of Labor’s Office of Foreign Labor Certification (OFLC), which processes prevailing wage determination requests for immigration purposes, recently announced a temporary suspension of new prevailing wage determinations. The suspension, which does not affect regular prevailing wage determinations, will allow the OFLC to focus its resources on reissuing approximately 4,000 H-2B prevailing wage determinations before a court-ordered deadline of September 30, 2011.
The court order, resulting from a decision in CATA v. Solis, where a U.S. District Court ordered DOL to reissue new H-2B prevailing wage determinations, was ordered on June 15, 2011. Prevailing wage determinations have been suspended since then while DOL works on reissuing the H-2B determinations. As a result, DOL issued the following statement:
“The OFLC’s 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 [was] 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.”
For H-1B professional temporary worker applications, prevailing wage determinations are optional, but they are mandatory for temporary labor certification applications, which are part of the H-2B nonprofessional temporary worker application process, and permanent employment certification (PERM) applications, which is necessary for green card applications. A filing date for PERM applications, for which DOL is required to issue a prevailing wage determination, establishes the employee’s priority date, which is his or her “place in line” for an immigrant visa under the annual quota system. Because a PERM application cannot be filed, the suspension may delay the filing date for many new or recently submitted PERM applications by a few months. Although for professional temporary worker applications, the delay in filing PERM applications may also have an immediate impact on H-1B non-immigrant workers approaching the end of their maximum six years of H-1B eligibility. To obtain extensions of H-1B status beyond the sixth year, it is necessary to have a PERM application on file for at least one year, or to have obtained approval of an I-140 Immigrant Visa Petition.
For additional guidance on prevailing wage issues and immigration compliance, visit the Labor and HR Topical Resources section of the AGC website.
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