Labor Certification Process Slowed by iCert Prevailing Wage System
Posted 26.Feb.2010
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The labor certification (LC) is the starting point in the permanent residence (green card) process for many. The position offered in the LC must have a rate of pay at or above the prevailing wage rate. The employer must obtain a prevailing wage determination (PWD) as part of the LC process. As of January 1, 2010, requests for PWDs must to be made through the U.S. Department of Labor (DOL) national office. As of January 21, 2010, the requests can be filed through the online system known as iCert. At the time of this writing, there appear to be delays in the issuance of PWDs through the DOL national office. This, in turn, is creating unusually long delays in the filing of LC / PERM cases.
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Background : Change to Centralized System
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Prior to the transition to the iCert system, PWD requests were submitted to the State Workforce Agencies (SWAs) in the various states. These requests historically were processed within widely varying timeframes. Some SWAs processed PWD requests on a same-day basis, while others required a few weeks or months to provide the PWD.
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As part of the efforts to centralize the LC process, all PWDs must now be requested via the DOL national office. Since January 1, 2010, the PWD requests have been made to a national DOL center, through a mail-in system. As of January 21, 2010, the PWDs can either be mailed or submitted via the online iCert system.
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No iCert PWDs : Waiting Time of Over a Month
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The Murthy Law Firm has made iCert PWD requests since the system began. As of late February 2010, over a month since many of the requests were made, the DOL has not acted on the requests that were submitted online. We have received a handful of PWDs which had been requested through the mail-in system between January 1st and January 21st. Our experience is shared by our colleagues in other firms, based upon information they have shared.
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The iCert system has been plagued with delays and problems, as reported in our article, Delay of Launch of the iCert PERM Portal (03.Apr.2009). More recently, the U.S. Citizenship and Immigration Services (USCIS) revised the system for accepting H1B filings without certified labor condition applications (LCAs) due to iCert delays connected with H1B LCAs. This was covered in our article, H1B Filings Temporarily Possible Before LCA Approval (04.Dec.2009).
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Delay in PWD Results in Delay in PERM Filing
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The delay in issuance of PWDs is important, as it is a vital step in the PERM process. Delays in obtaining the PWD may result in delays in the ability to proceed with the recruitment steps needed before filing the PERM case for green card processing. There is a complex regulatory scheme of recruitment requirements, all of which have set timeframes and must be coordinated.
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Validity Timeframes for PWDs
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The PWDs have set validity periods. In the past, this ranged from 90 days to one year. If the recruitment efforts started before the PWD was issued, then the PERM case must be filed during the validity of the PWD. Alternatively, if an employer starts recruitment during the PWD validity period, the PERM case can be filed as long as the recruitment remains valid. Recruitment is valid for 180 days. From what our firm has seen to date, under the new centralized system, the PWD validity given as of early 2010 has been limited to June 30, 2010. This appears to tie in with the annual updating of the wage surveys used as a basis for the PWDs.
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Notice of Posting Requires Wage Rate Offered
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One of the requirements in the PERM process is a notice of posting. This notice must be posted at the location of employment for a minimum of ten consecutive business days, and must contain the rate of pay. It is risky to move forward with this posting, absent the PWD.
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The notice of posting generally is coordinated with a required SWA job order, as well as the other required recruitment. The SWA job order must be placed for thirty days. These job orders contain slightly differing requirements, depending upon the state. Some require wage information. There is a thirty day "quiet period" after the end of recruitment. The PERM case cannot be filed until the quiet period has elapsed.
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Thus, the preparation of the PERM case, and the timing of the required steps is, in large part, dependent upon a PWD. Many employers do not want to commit the funds required for recruitment and PERM preparation without a firm determination of the wage requirement.
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Delays in PERM Case Filings Result in H1B Extension Problems
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The delay in the filing of a PERM case does not simply result in a slightly slower green card process. Many H1B workers are at the point where they need PERM cases filed in order to be eligible to extend H1B status beyond the initial six years. They must have the PERM cases filed at least a year prior to the expiration of their six years of H1B. Without a qualifying PERM filing, these workers run the risk of having no way to remain in the United States beyond the six year mark. This is disruptive to both the H1B workers and their employers.
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H1B workers facing this problem may have some options, as outlined in our March 6, 2009 article, Filing Labor Certifications during Sixth Year of H1B. None of these options, however, is as smooth and simple as having the PERM case filed sufficiently in advance to permit further H1B extensions from within the United States. For now, H1B workers and their employers need to plan well in advance. The PERM application should be initiated well before the last year allowed under the H1B status in order to allow enough time for preparation, and provide for the uncertainty in DOL processing time for PWDs.
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Conclusion
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This problem was recently brought to the attention of the DOL by the Murthy Law Firm. We also requested clarification regarding PWD processing times and expiration dates. If this problem persists, and leads to the potential inability for many employees to obtain H1B extensions, then additional efforts will be needed to address PWD delays. MurthyDotCom and MurthyBulletin readers will be apprised of the latest available information on PERM and PWDs, as it becomes available.
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