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The New Prevailing Wage Process for PERM Applications

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The New Prevailing Wage Process for PERM Applications

June 1, 2010

Within the last few months there have been significant changes to the Prevailing Wage Determination system, an essential piece of the PERM process.

The following will provide further clarification on the change that occurred at the beginning of this calendar year with regard to the method by which we obtain prevailing wages for labor certification (PERM) cases from the government.
When going through the recruitment process for a PERM application, an employer must agree to offer the "prevailing wage" for the position. What is "prevailing" is determined by the government, and is based on the level of education and experience that the position requires. Once we have worked with the employer to finalize the requirements and duties for a particular position, we submit this description to the government to obtain the prevailing wage up front, prior to the commencement of the recruitment necessary to support the PERM. We do this for two reasons:

  • We need to make sure the government uses the appropriate occupational classification for the position, as this impacts what type of educational and experiential requirements the company can safely require for a smooth case adjudication; and
  • We need to make sure the government uses the appropriate level of its four level wage survey, and that the wage determination is one that comports to what the company is willing to meet (or exceed).

For decades, the prevailing wage determination was obtained from the state in which the position was located. For California, this was the Employment Development Department, and for New York, the New York State Department of Labor.

In January of this year, the US Department of Labor centralized the function and took over the job of issuing prevailing wage determinations through a new, online process. The US Department of Labor still uses the same wage survey and data (which is typically updated every year in July) and is geographically specific and split into the four levels per occupation.

Although the survey that serves as the source of the wage data has not changed, the process is now vastly altered and not in a good way. Now, instead of obtaining the wage determination in 10 to 15 days, it is taking at least 60 days. And, when the determinations come in, the Wage Analysts have frequently incorrectly categorized the position and the level. Indeed, there appears to be an inflation of the leveling going on, with a lot of level 3 and level 4 wages coming in for positions that we would formerly have classified as a level 1 or level 2.

So, in addition to the up-front delay in issuance, there are problems that need to be resolved with the Wage Analysts on the back end. Unfortunately, where we knew all the Wage Analysts from the various state agencies (through conferences and practice over the years) and could talk to them and usually work out our differences as to classification and leveling, since the function has been centralized, there is, literally, no one to talk to. When we have a problem with a wage determination now, there is a formal "re-determinaton" procedure that we must follow. Our national attorney organization, the American Lawyers Immigration Association, is trying to resolve these issues at a national level. However, there is no quick fix to make this new system operate quickly and smoothly.

Since the new prevailing wage determination process can easily add 60 days up front to the overall time that it takes to recruit and file a PERM. Where we could previously have the company recruit and file a PERM in 2 to 3 months, it now will take at least 4-5 months and even that timing assumes an acceptable determination once issued.

So, we advise starting the PERM process a few months earlier than before, in order to account for these additional delays in the process. This is particularly important for those individuals who need a PERM filed by the 5th year deadline of their H-1B status to ensure the ability to extend the H-1B status on the back end of their 6 year "maximum."

Please contact us with any questions.

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