DOL on PERM, Backlogs & Prevailing Wages - March 2005
Posted Apr 15, 2005
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As our regular MurthyDotCom and MurthyBulletin readers are aware, certain high-ranking officials from the U.S. Department of Labor (DOL) periodically meet with select representatives of the American Immigration Lawyers Association (AILA) to discuss issues of relevance to our clients. AILA released the contents of two March 2005 conversations in early April 2005. We have summarized highlights of those discussions for the benefit of our readers.
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Non-PERM Cases Arriving after March 28, 2005
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The DOL reconfirmed that the State Workforce Agencies (SWAs) should accept labor certification applications that they receive after March 28, 2005 if the applications were postmarked on or before March 27, 2005. We take this opportunity to remind everyone that all labor certifications must now be filed under the PERM program. If a labor certification filing was postmarked by March 27, 2005, it was within the deadline for the old system. If not, the case must to proceed under PERM.
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Filing under PERM When Non-PERM Case is Pending
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The DOL reiterated that they do not like to see a company file multiple labor certification applications for an individual. The DOL would prefer not to see a company file a labor certification application for a Software Engineer if the company has already filed a Programmer Analyst labor certification application for that same beneficiary, for example. The DOL did not directly answer whether a labor certification application filed under PERM for Job B for a beneficiary would affect a pending non-PERM application filed for that same beneficiary for Job A in the same company. Therefore, it is unclear whether this stated preference is simply that, a preference obviously connected with the desire to eliminate extra work for the DOL, or an issue that will legally impact the outcome of the case.
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Cases Pending at BPCs
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The DOL reported that the Backlog Processing / Elimination Centers (BPCs) received approximately 250,000 pending cases by mid-March 2005. Many of these are still being data processed. A small number of BPC personnel are now processing labor certifications, though the DOL did not have a processing time estimate since the majority of the BPC personnel are still working on data entry. As of this writing, we at The Law Office of Sheela Murthy, P.C. have not received any substantive action (approval, denial, Notice of Finding) from the BPCs.
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Calculating Prevailing Wages
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The DOL completed some sample prevailing wage determinations confirming that it is possible for a job to be a level one or level two job under the new prevailing wage system. They have trained the SWAs to use a rule of reason and not to double-count a requirement to artificially raise the score of the job.
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The DOL also clarified that the requirement of a license for a particular occupation will not cause an automatic increase in level for the prevailing wage. If the occupation requires a license in the state where the work will be performed, no additional points should be given in assessing the appropriate wage level. The SWAs will use America's Career Infonet to determine whether a license is required for a given occupation in the state where the work is expected to be performed.
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We find these clarifications to be helpful and will continue to provide MurthyDotCom and MurthyBulletin readers with immigration-related DOL updates.
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