A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Thursday, January 7, 2021

Delay of PERM Prevailing Wage Determination

Immigration practitioners may have noticed a gradual delay of the issuance of prevailing wage determinations (PWDs) by the Office of Foreign Labor Certification of the Labor Department.  The processing time has almost doubled in the past few years.  For many years, the average processing time for PWD used to be between 3 and 4 months.  However, the current PWD processing time has increased to about 6 months.  The delay means that advance planning is critical for employment-based immigration cases. 

Requirement of the Prevailing Wage Determination

To petition for a foreign worker for permanent employment in the US, an employer typically has to go through the PERM labor certification process.  PERM certification is proof that the employer is not able to find a qualified and available US worker to fill a particular job opening.  Submission of a prevailing wage request (Form ETA 9141) is an initial step in the PERM application process.  In the PWD, the Labor Department will determinate the marketing wage for the position based on factors such as the job location, duties and requirements.  The employer must offer at least the prevailing wage to any qualified applicant. 

Timing is Critical for Employment Cases

In employment-based green card cases, timing is really everything.  Frist, the PERM process is governed by very strict time restrictions, and any deviations will result in a denial.  Further, consider a typical applicant who was born in India and is working in the US on H-1B visa.  The cutoff dates for the EB-2 and EB-3 categories are about 10 years away. The sooner this applicant applies for PERM, the earlier he can secure a priority date (PD), and the earlier that he can get his green card approved.  Filing PERM early can also facilitate this applicant's H-1B extension under the AC-21 portability rules.  Significantly, the current delay with PWD will cascade down the entire application process for permanent residency.  

Planning Ahead

In light of the current delay of PWD, employers and applicants should plan ahead. Map out an application schedule as soon as possible.  As it does not cost anything to file a prevailing wage request, employers should file the requests early on if they anticipate sponsorship of foreign workers down the road.   It is also possible to start PERM recruiting before the PWD is issued. But be forewarned - there are risks involved in doing so and an employer should only do it under the advisement of an experienced practitioner. 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule legal consultation.) 

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