August 2ā 2011
Processing of Prevailing Wage Determinations Currently
Suspended Until Further Notice
On July 29, 2011, the Department of Labor (DOL) announced
that the Office of Foreign Labor Certification (OFLC) National Prevailing
Wage Center has temporarily suspended processing of prevailing wage
determinations, redeterminations, and Center Director Reviews. Prevailing
wage determinations must be filed in connection with all labor
certification applications (PERM) for permanent resident status and H-2B
seasonal temporary workers, and, in a few instances, H-1B specialty
occupation petitions. Delays in processing prevailing wage requests may
affect the processing times for these types of cases.
The reason for the delay is to comply with a court order
issued by the U.S. District Court for the Eastern District of Pennsylvania
that stems from the August 30, 2010 decision in CATA v. Solis. To
comply with the courtís initial ruling in CATA v. Solis, DOL issued
revised prevailing wage regulations (Wage Rule) on January 18, 2011.1 However, the
new rule only applied to wages paid for work performed on or after January
1, 2012. This year-long delay in implementing the new Wage Rule would
require the continued payment of a lower, invalid wage to H-2B workers.
Therefore, a court order was issued on June 15, 2011, giving DOL 45 days to
announce a new effective date of the Wage Rule. On August 1, 2011, DOL
published a final rule setting an effective date of September 30, 2011 for
the Wage Rule. DOL is now in the process of reissuing certain H-2B
prevailing wage determinations to comply with a court order. All OFLC
National Prevailing Wage Center resources are currently being utilized to
comply with this order.
Pending and To-Be-Filed Prevailing Wage Requests
The scope and duration of the delays is uncertain at this
time. Processing of pending prevailing wage requests will resume as soon as
full compliance with the court order has been completed. DOL is also
encouraging requestors to continue to file new prevailing wage requests
during this suspension period.
Mintz Levin will continue to monitor the situation to keep
our clients apprised of the situation. If you are concerned about the
short- and long-term impact these prevailing wage delays will have on your
case, we encourage you to speak with your immigration attorney.
1 Wage Methodology for the Temporary
Non-Agricultural Employment H-2B Program, 76 Fed. Reg. 3452 (Jan. 19,