Government Shut Down Delays PWDs and Impacts PERM Filings

As a result of the U.S. federal government shutdown, the U.S. Department of Labor (DOL) is temporarily not accepting or processing prevailing wage requests. A prevailing wage determination (PWD) is generally a required component at the outset of the PERM labor certification process that is used in most situations in which an employer is sponsoring a foreign national employee for a “green card.” Given this unusual situation, allowing no PWDs to be processed, employers must make a number of considerations when contemplating whether to start PERM-related recruitment efforts without first obtaining a PWD.

Background: Safer to Obtain PWD Before Filing PERM

In ordinary circumstances, it generally is advisable to wait for the issuance of a prevailing wage determination prior to initiating PERM-related recruitment. In limited situations, however, it may be possible and even advisable to start recruitment without a PWD to avoid a delay in filing the labor certification. More detailed information on the PERM process and timeline is available in the MurthyDotCom NewsBrief, PERM Labor Certification Process and Timing (18.Mar.2013).

The unusual circumstance of the government shutdown has created concerns for both employers and their foreign national workers who may face immigration complications if they simply wait until the DOL resumes operations. But moving forward without a PWD also carries uncertainties.

Risk of Placing Ads When Prevailing Wage is Unknown

If advertisements and related recruitment is started before obtaining a certified PWD, the recruitment efforts must be based on an assessment of the anticipated PWD outcome. The wage must be included in some of the advertisements. If the recruitment is initiated, and the later-issued PWD establishes a higher required wage level, some or all of the recruitment will have to be re-done. This typically results in delays in filing as well as additional expense for the employer related to reposting the advertisements.

Limited Validity Period for Advertisements

PERM LC applications cannot be submitted without a DOL-issued PWD, and PERM-related advertisements are only valid for a maximum of 180 days from the start of the earliest piece of recruitment. If recruitment begins prior to the issuance of the PWD, the case can only be filed if the PWD is issued while the recruitment is still valid. Thus, if the government shutdown is protracted, and/or if there are significant delays in PWD issuance after DOL operations resume, the advertisements may expire before the PWD is issued. This, again, would create additional delays and expenses for employers.

Limited Prevailing Wage Validity Period if Recruitment Starts Prior to PWD

A PWD is only valid for a limited period of time. Under DOL regulations, if the PWD is issued prior to the commencement of recruitment efforts, and the advertisements are then run during the validity period of the PWD, the PWD will remain valid for the same period of time as the advertisements (i.e. 180 days maximum). However, if the employer chooses to begin advertising prior to issuance of the PWD, the labor certification must be filed within the stated PWD validity period. This means that if there is a delay in completing any aspect of the case, the PWD could expire prior to filing, and the advertisements may need to be reposted.

Conclusion: Seek Advice to Help Weigh Risks

No one wants more delays in the already-lengthy PERM process. Nonetheless, there are risks in moving forward with the advertisement component of a PERM case without a PWD. For most, the safest option is to wait for the resumption of the PWD process. There are some situations, however, particularly if one’s status may expire or if there are deadlines for other reasons, in which there may be reasons to move forward promptly. It is necessary to weigh the risks and benefits to both the employer and the employee, and to obtain proper legal guidance in the evaluation process. The attorneys at the Murthy Law Firm are available to advise on these difficult decisions during consultations.

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