As many of you may know the DOL has suspended issuing prevailing wage determinations for several weeks now. Such determinations are essential to start any PERM case.
On Wednesday, August 24, 2011, AILA 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.
The following are a few questions that were brought up to the DOL in light of the recent delays, see what they responded:
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.
We have also started receiving certifications filed in June. As of this writing, the DOL has not issued any announcement regarding resumption of action on PWD requests. Thus, it is too early to know if the DOL is returning to business as usual with regard to PWD requests. The PWDs we have received were requested in early June 2011. Many additional PWD requests continue to await action. We will keep you posted.