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DOL Updates PERM Processing Times
The Program Electronic Review Management (PERM) System for online labor certification has been riddled with backlogs. It was intended as an updgrade of the prior, paper-based system. Initially, there were cases of PERM approvals in a few days or weeks. But quick PERM decisions are now history.
The U.S. Department of Labor (DOL) recently updated its estimated processing times for PERM applications. As of November 3, 2009, DOL was processing to completion non-audited PERM cases that were filed in February 2009. The DOL was processing audited cases that were filed in December 2007, and appeals that were filed in August 2007. Cases in which there was a government error in an earlier stage of processing were reported as current.
In most cases, employers must complete the labor certification process to sponsor foreign national employees for permanent resident status in the U.S. |
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USCIS Issues Q&A on Acceptance of H-1B Petitions Without Certified LCAs
U.S. Citizenship and Immigration Services (USCIS) issued a Q&A document describing its temporary acceptance of H-1B petitions filed without certified Labor Condition Applications (LCAs). The policy, which went into effect on November 5, 2009, and ends on March 9, 2010, is meant to address ongoing delays with the U.S. Department of Labor's (DOL) iCERT system. USCIS will continue to monitor the situation.
The Q&A states the following:
1. USCIS cannot accept an H-1B petition where the DOL denied the LCA (even if the denial was made in error). USCIS, however, will exercise discretion to determine whether to excuse a late filing for an extension of stay or change of status H-1B petition if the delay was due to the erroneous denial of an LCA.
2. The DOL sometimes approves an LCA with a later start date than requested due to processing delays and the fact that DOL cannot backdate the starting validity date of an LCA. USCIS will not deny an H-1B petition on the basis that the LCA originally filed with the petition was certified after the petition was filed, as long as the case is found to be otherwise approvable. In such a case, USCIS will exercise discretion based on the totality of circumstances to determine whether to issue a Form I-94 showing continuous authorized stay and extension of stay.
3. The certified LCA submitted in response to a USCIS Request for Evidence (RFE) must be the same LCA that was pending at the time of filing of an H-1B petition receipted under the temporary acceptance procedures. If the LCA that was originally filed for the H-1B petition is later denied, USCIS will not accept a new, certified LCA in response to an RFE asking for the certified LCA.
Each LCA has a unique identification number. Submission of a new certified LCA having a different identification number than the LCA referenced upon initial filing will be denied. The only exception is if the new LCA was certified prior to the filing of the petition.
For more information, read the complete Q&A document. While this temporary policy helps to make up for DOL's iCERT delays, it is best for employers to file their LCAs as early as possible to allow DOL more time to certify the LCAs. Furthermore, the policy is scheduled to end on March 9. |
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Things to Know About the New DOL Prevailing Wage Process
As of January 1, 2010, requests for prevailing wage determinations (PWDs) for the PERM, H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B and E-3 programs must be submitted to the new, centralized National Prevailing Wage and Helpdesk Center (NPWHC) in Washington D.C., rather than to State Workforce Agencies (SWAs). A PWD is a calculation of the average rate of wages paid to similarly employed workers in the area of intended employment.
How to Submit PWD Requests
Employers should submit their PWD requests on a Form ETA-9141, Application for Prevailing Wage Determination, by mail or delivery service to: U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn: PWD Request; 1341 G Street, NW., Suite 201, Washington, DC 20005- 3142.
The DOL does not prohibit the use of major commercial express mail services. Some government agencies, however, restrict the types of local messenger services that may enter government installations. DOL is expected to provide further details on this issue in the near future.
Starting on January 20, 2010, DOL will provide an online, automated system for submitting prevailing wage requests through its iCERT portal. Employers may still submit requests by mail after January 20, but the DOL will need to re-key information from the paper form into the online system. This could delay processing.
Processing Times and Procedures
So far, the DOL has not commented on the expected processing times. The DOL will consider prevailing wage requests on a "FIFO" (first-in, first-out) basis. There is only one master queue and no separate queues for different case types.
Because e-mail, fax, and online submissions are not currently allowed, employers must mail their PWD requests to NPWHC. This will slow down the process for at least the period of time that the request would need to be mailed to the NPWHC and to be opened. Plus, as with any new program, start-up glitches are likely.
DOL expects that for mailed prevailing wage requests, it will e-mail PWDs as a PDF file if an e-mail address is included on the form. DOL will not honor return express mail requests (e.g., by including a self-addressed express mailer).
NPWHC's Approach
NPWHC may take a different approach than some SWAs when making PWDs, including assignment of occupational categories and wage levels. The validity periods of PWDs issued by the NPWHC could also be shorter than those issued by some of the SWAs.
Use of Independent Surveys
Employers may still use independent authoritative wage sources and supplemental wage information, if such information meets the current requirements. Cases relying on independent wage sources might take slightly longer to process.
When making a PWD, the NPWHC will consider wage information provided by the employer. The Federal Register notice announcing the opening of the NPWHC describes information that an employer must provide with an independent survey.
Requests for Redeterminations
When an employer disagrees with a PWD, it may file a request for redetermination with the NPWHC. These challenges should be mailed to the Office of Foreign Labor Certification at U.S. Department of Labor-ETA; National Prevailing Wage and Helpdesk Center; Attn.: PWD Review, 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.
Compared to some SWAs, NPWHC might be less open to reconsidering PWDs, including assignment of occupational categories and wage levels.
There is also the option of appealing to the Board of Alien Labor Certification Appeals (BALCA). Requests for BALCA review should be mailed within 30 days of a determination to U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn.: PWD Appeal, 1341 G Street, NW, Suite 201, Washington, DC 20005-3142.
Role of the Helpdesk
In the near future, DOL will provide an e-mail box to resolve problem issues. DOL does not expect the e-mail box to be used for resubmissions or for establishing a dialogue about the appropriateness of a given PWD. Instead, PWD challenges must be done through a formal request for redetermination or appeal.
Grace Period Ends January 15
The SWAs were accepting and processing prevailing wage requests prior to January 1, 2010. As of January 1, all requests must be sent to NPWHC. There are no plans to transfer cases filed with the SWAs prior to January 1 to NPWHC at any point.
There is, however, a 15-day grace period through January 15, where cases submitted to the SWAs in error will be forwarded to the NPWHC. This will slow down processing because it takes time to forward the case to NPWHC. After January 15, the SWAs will reject prevailing wage requests.
For more details, read the Federal Register notice announcing the new process.
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