Process for Prevailing Wage Determinations to Change
December 10, 2009
Effective January 1, 2010, employers seeking H-1B workers and filing PERM labor certification applications will be required to obtain Prevailing Wage Determinations (“PWD”) directly from the U.S. Department of Labor instead of their state workforce agency as is currently the case. See Department of Labor Rule. This follows a trend by the Department of Labor to centralize the application process of the foreign labor certification program.
As part of the H-1B visa program and the labor certification process for most green card applications, employers must agree to pay the higher of the actual wage or the prevailing wage for the position in the area of intended employment. A prevailing wage for a particular position may generally be determined through a number of sources, including the Department of Labor’s Online Wage Library, a collective bargaining agreement if one is in place, or an acceptable private survey. Although a PWD is not currently required under the H-1B program as it is under the PERM program, by having the PWD done by the state of intended employment, the H-1B employer benefits from a presumption that the prevailing wage is accurate. While the procedure will change as of January 1, the prevailing wage requirement and the benefits of the presumption remain in place. The request for a PWD under the new system must be made using ETA Form 9141.
As many H-1B employers know, certification of a Labor Condition Application (“LCA”) by the U.S. Department of Labor now takes longer than in past years. LCA processing is currently taking up to 7 business days whereas certification was usually instantaneous in past years. The new PWD process may add to the total processing time for H-1Bs. One would expect delays as the U.S. Department of Labor made no provision to file the PWD requests via email or online, or even by fax for that matter. The State of Maine was usually fairly quick in turning around PWDs, so that part of the process will be missed. Regardless, employers should anticipate further delay in sponsoring H-1B workers and in filing PERM applications with the U.S. Department of Labor.
Please contact Matt Raynes at our Bangor, Maine office with questions.
This alert is provided as general information, and is not a substitute for legal or other professional advice.
