Just about when the pre PERM filing prevailing wage determination processing times improved, we began noticing significant delays recently. As a way of background, employers wishing to sponsor a foreign national for an employment-based permanent residence application in either the EB-2 or EB-3 categories regulations require such employers to make a formal prevailing wage determination request. Based on the news coming out of the US Department of Labor, such employers must now wait.
BackgroundPrior to January of 2010, all prevailing wage requests were determined by the State Workforce Agency (“SWA”). In some cases, SAWs were completely unreasonable in their computation methodologies and were quite arbitrary. Ohio for instance was one of the worst states in their computation methodologies. The Ohio Department of Jobs & Family Services located in Columbus, Ohio was the agency historically commissioned with the task of determining prevailing wages for all pre PERM filing application processes.
Ohio’s prevailing wage determination process was later challenged in matter of Reed Elsevier, Inc., 2008-PER-00201 wherein Board of Alien Labor Certification Appeals agreed that the Ohio Department of Jobs & Family Services used an erroneous method of combining experience and educational requirements when computing prevailing wages; a methodology which was inconsistent with the regulatory provisions. For a decade prior to the issuance of the Reed case, our Columbus, Ohio Immigration Law Firm has challenged these determinations repeatedly and brought to the attention of various organizations the injustice brought about Ohio’s arbitrary system.
Kudos to the lawyers who challenged the Ohio prevailing wage process; this challenge obviously did not help the thousands of employers who previously had been issued outlandish prevailing wage determinations by the Ohio SWAs use of erroneous methodologies. I might add that some employers faced with such unreasonable prevailing wage determinations may have been dissuaded from pursuing permanent residence for some of their employees.
Such inconsistencies prompted the US Department of Labor to centralize the prevailing wage determination process and took it away from the various State SWAs. The new re-engineered system was to be an on-line application process and it became effective January 2010. Initially the prevailing wage processing times were incredibly slow totaling 90 days in some cases. Eventually, the processing times became better down to 25 days. It is not clear now how long the prevailing wage determination process will take.
Processing DelaysThe American Immigration Lawyer Association posted on its website this morning that several AILA members noted significant delays in the processing of prevailing wage requests in connection with a PERM application process. The US Department of Labor states that these delays happened as a result of a temporary halt in their operations in an attempt to comply with order of the US District Court for the Eastern District of Pennsylvania in CATA v. Solis, wherein the Court ordered the US Department of Labor to establish new H-2B prevailing wage regulations.
As the US Department of Labor issues regulations in connection with the H-2B visa program, employers wishing to process PERM applications must wait. I will post updates once they become available on the prevailing wage processing times.