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Major Fluke In PERM Regulation: Validity Period Of PWD In Error

by Joel Stewart

One of the questions most frequently posed by practitioners concerns the validity period for prevailing wage determinations. The controlling regulation is found in Subpart D of the PERM rule, “Determination of Prevailing Wage,” under Sec. 656.40(c):

(c) Validity period. The SWA must specify the validity period of the prevailing wage, which in no event may be less than 90 days or more than 1 year from the determination date. To use a SWA PWD, employers must file their applications or begin the recruitment required by Sections 656.17(d) or 656.21 within the validity period specified by the SWA.

Accordingly, the regulation states that the SWAs may stipulate any period of validity as long as it is no less than 90 days or more than 1 year from the determination date.

The DOL has stated, and it is generally assumed by the Bar, that the prevailing wage date is further valid as long as either one of two conditions occur: (1) the application is filed during the validity period, or (2) the recruitment begins during the validity period. If the Employer relies on condition (1), then the application may not be filed unless the recruitment is completed during the 90-365 day window. In states where the SWA issues a PWD for only 90 days, the recruitment efforts require careful timing and would have to be reduced to 90 days. Otherwise the two periods would not remain in synchronization.

A more user-friendly rule is found in condition (2) which purports to extend the prevailing wage period, so that it does not even begin to run until the 180 day recruitment period is initiated. Under this subsection, the employer can obtain the prevailing wage and begin the 180 day recruitment period anytime up to the last day of the prevailing wage validity period.

Since the recruitment period may span as many as 180 days, the total extended validity period of a Prevailing Wage Determination may be expressed as [SWA validity period] + [<181 days],  where the former represents a period of between 90-365 days, and the latter represents a maximum of 180 days. Using this expression, the total possible validity period for the prevailing wage would be [180] + [90] (270 days) in jurisdictions where the SWA grants the PWD with a validity of only 90 days, and [180] + [365] (545 days) in jurisdictions where the SWA grants the PWD with a validity of 365 days..

The problem with this analysis is that the stated regulation applies only to recruitment initiated under two subsections of the PERM rule:  Sec. 656.17(d) or Sec. 656.21. Under these subsections, the employer may rely on condition (2) above, i.e.,  may “…begin the recruitment required by Sec. 656.17(d) or 656.21 within the validity period specified by the SWA.”  Note that 656.17(d) refers to PERM’s “Refiling Procedures” (choosing the option to retain the original priority date from a previously filed application), and 656.21 refers to “Supervised recruitment.” Although it is widely assumed that the prevailing wage validity period includes the Basic Labor Certification process and Schedule A, only applications filed under Refiling Procedures and Supervised Recruitment gain the benefit of the extended prevailing wage period that begins when the 180 day recruitment period is initiated.

The prevailing wage rule, as currently written, requires the PERM application to be filed no later than the last date of the 90-365 day validity period stipulated by the SWA in its PWD, unless the Employer’s application seeks the refiling option or the Employer is recruiting under supervised recruitment. Recalling that the Immigration and Nationality Act clearly states that the Secretary of Labor must certify that “the employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed,” it appears that aliens who apply under the basic labor certification process or Schedule A and misinterpret the validity period of the PWD may be inadmissible and excludible from the United States under 212(a)(5)(A), and labor certifications, if already approved,  may be subject to invalidation or revocation under the PERM rule.

The government's FAQ on prevailing wages issued on August 1, 2005, states that " use a prevailing wage determination for an application for permanent labor certification, the employer must file the application or begin the recruitment required within the validity period specified by the State Workforce Agency." While the FAQ generously extends the validity period to include the beginning of the recruitment period, the FAQ is nothing more than an operating instruction and does not carry the weight of law. The FAQ also does not acknowledge that there is a defect in the regulation but simply purports to state the validity policy as if it were taken from the regulation. On January 9, 2006, DOL's Atlanta National Processing Center issued a "Prevailing Wage E-Gram #06-01" which has apparently not been made available to the public (for example, it is not included in the FAQs). The E-Gram states that the published regulation refers to section 656.17(d), although it should refer to Sec. 656.17. The E-Gram continues, "Employers may submit their PERM application after the validity period of the prevailing wage determination if they begin the recruitment process during the validity period." The FAQ and E-Gram are not regulations but only operating instructions and general statements of policy that confer no substantive rights, and one must remember that as the government giveth it may taketh away.

Editor's Note: This article originally appears in the first issue of PQ: The PERM Quarterly. For more info, see here.

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil. He is a partner at the firm of Fowler-White-Burnett in Miami, Florida.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.