Department of Labor Prevailing Wage Guidance: A Light at the End of the Tunnel for PERM and H-1B Filings?

Tunnel Picture.jpgSince January 1st of 2010, the Department of Labor (“DOL”) has overtaken the responsibility of determining the prevailing wage for the Labor Certification Applications used to obtain a Green Card or Legal Permanent Residency (“LPR”) in employment based visa petitions. The effect of the government’s change to the process intended or not, has been to substantially increase the time needed for before beginning the actual PERM process. Additionally, many institutions, such as colleges and universities, which rely on the official prevailing wage determinations of the government, have seen the same delays applied to their H-1B filing process. At a recent meeting between the Department of Labor and representatives of associations that have a stake in prevailing wage issues, the DOL was asked and answered real questions about the important issues that the government’s new policy in this area has created. As a result, the DOL has offered the first glimpse of guidance for successfully completing a prevailing wage determination. In usual governmental fashion some of the answers given have been vague and unsatisfying to those working with these issues on a daily basis. Practitioners and applicants are left to wonder: Is there light at the end of the tunnel, or are these changes to the prevailing wage part of a larger policy of deterring the best and the brightest from moving to America?

Insight to common problems encountered within the Prevailing Wage Application Itself

First and foremost among the problems presented by the Department of Labor’s prevailing wage system is the amount of time that it takes from submission of the form, to determination of the result. The delay in process has essentially taken a two (2) day process and created a sixty (60) day ordeal. The effect of this delay has been to severely restrict the start time for beginning the arduous Green Card process. This delay has also had the side effect of injuring large institutions such as colleges and universities that frequently rely on the prevailing wage determination for its 100% accuracy and reliability when filing H-1B applications for professors and other workers.

The department of labor has stated that the delays have been caused by the increased workload and the lack of staffing available to make such determinations. While one would think that the DOL should have anticipated a flood of prevailing wage applications when they centralized this process by wrestling it away from the states, the government claims that it is working diligently to resolve the issue. The DOL hopes to hire more adjudicators in order to take control of this situation and reduce processing time. While the government’s acknowledgement that sixty days (60) is too long of a wait time, the admission is little solace to those who have been squeezed for time by this process.
Incomplete Applications and Requests for Clarification
One advantage of filling out a prevailing wage under the iCERT format is that the website warns the applicant when fields on the application are not filled in. Specifically, there are red asterisks next to all vital fields warning the user to fill in the blank. There are also various pop-up warnings and alert signs that remind the user that a field has not been completed in one of the necessary areas of the application. This system of alerts has a distinct advantage over the paper submission format, where any omission would result in a denial.

The DOL has recently explained the process for denying incomplete or ambiguous prevailing wage applications. First, incomplete prevailing wage applications will be denied. The immediate effect of a denied prevailing wage application is that a great deal of further delay will occur. If one is to assume that the error will not be found until the application is processed, and applications are not processed for up to sixty days, than it is easy to see that such a denial could be disastrous.

A more encouraging sign of progress is the DOL’s stance on instances where more information could remedy an ambiguous field. The DOL has stated that where the DOL needs more clarification or more information to resolve an issue on the application, the DOL will e-mail the employer or attorney and request such additional information. The recipient of the e-mail will have seven (7) days to respond to such an e-mail request. What is not exactly clear is what constitutes a situation where a request for additional information is warranted, as opposed to a situation where a denial is issued. The best practice, as always is to be meticulous and clear when filling out such forms.

Guidance on some common issues relating to specific fields of the application

Abbreviations for Education Majors – It is common in the real working world for people of many different college majors to qualify for a working position. If one wishes to report all of the majors that are applicable to a certain position on the prevailing wage form, he or she must do so in a very limited amount of characters. If the majors applicable to a position are very wordy, it has been common practice to abbreviate the major in the field to fit all majors that may apply. A college major that is left out could theoretically be used to limit the potential qualified applicants. The DOL has stated that they will accept common abbreviations for college majors and that they have retrained their staff accordingly. One is left to wonder what a “common abbreviation” is. However, the small recognition of the reality of the process is encouraging.

Alternate Education and Experience Requirements – It is also common in the real world for employers to accept different, but equivalent levels of education and experience for a position. In the world of PERM, this is a delicate and intricate balancing act to show. For the sake of this blog, we can assume that a bachelor’s degree plus five years of job experience is equivalent to a master’s degree plus two years of job experience. The prevailing wage application only allows for one “set” of work and experience in the applicable field. The DOL has stated that a second “set” of education and experience may be placed in the “special skills” section of the application. It must be noted that practitioners should clearly refer the reader to see both fields for the total of the education and experience required.

Using Experience Rather than a Bachelor’s Degree – If the applicant does not have a bachelor’s degree, but does have a sufficient amount of experience to add up to a bachelor’s degree, the common practice has been to state so with specific, legally operative language on the prevailing wage application. The DOL’s prevailing wage application does not allow enough room to type the specific language needed. The DOL has addressed this problem by recommending this language be placed in the “special skills” section with a clear reference to and from both applicable fields.

Roving Employees – Where an employee will carry out his or her work in various locations, some of which are not presently known, the DOL has referred practitioners again back to the special skills section of the application to input the necessary information. Essentially, if it in not known where all of the work locations will be, check the box that says “no” to multiple work locations, and clarify the answer in the special skills section. Stating “various locations” or “unknown” may result in delay or denial of the application.

Conclusion

The importance of the prevailing wage determination to a successful recruitment in the PERM process and a successful Labor Certification Application cannot be understated. The job requirements and much of the wording used in the prevailing wage application is set in stone for the remainder of the recruitment after the prevailing wage determination is decided. This tactical use of language affects the PERM process, Labor Certification Application, I-140 and I-485. Wording used in the prevailing wage application are like ripples created by casting a stone into the water. The words used in the prevailing wage application gain momentum and strength and importance throughout the PERM process. The choice of wording at the initial stages of the process will either create a wave that carries the application to success, or create a destructive swell that breaks before the application has reached the shore. Practitioners and applicants must choose their words wisely before committing to the prevailing wage ordeal.

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