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ILW.COM Bloggings On April 26, 2010

by Joel Stewart

PERM: Prevailing Wage Validity Was Valid for Only 90 Days!

I received a question about the prevailing wage Validity Period for PERM:

The attorney recently received a PERM case denied because the adjudicator stated that, according to Section 656.40(c) "to use a SWA prevailing wage determination, employers must begin recruitment or file their application within the validity period specified by the SWA."

In this case, the first recruitment was the newspaper ad, and the employer did not wait to receive the prevailing wage information.  The PERM was filed after the 90 days PWD validity period. 

The attorney wanted to know if there was still a chance of getting it approved by filing a Motion to Reconsider. He argued,

1.  The  first recruitment step does not require the prevailing information; and
2.  The regulations provide 180 days to complete recruitment, but because the state prevailing wage determination was only valid for 90 days, the 180 day period was more or less nullified because of the inconsistency between the federal and state laws. 

The federal law clearly states that the employer has to BEGIN the recruitment or FILE the PERM form during (within) the validity period of the prevailing wage. Since January, 2010, the prevailing wages are no longer calculated by the State Workforce Agencies. The current case is one that is still in the pipeline under the procedure that utilizes state prevailing wage determinations.

In a state where the State Workforce Agencies only gave 90 days, employers could easily fall outside of the prevailing wage determination period. Even though, the 180 day recruitment period overlapped the entire 90 day period, the Employer can not use the Prevailing Wage determination unless it follows the regulations, which state:

The National Processing Center must specify whether 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 prevailing wage rate provided by the NPC, employers must file their applications or begin the recruitment period required by Sec. 656.17(e) or 656.21 of this part within the validity period specified by the NPC.

Again, the regulation states that the employer can BEGIN the recruitment after obtaining the prevailing wage or FILE the application after filing the prevailing wage, but in the latter case, only if the employer files the application before the prevailing wage validity period has ended, in this case before the 90 day period has ended.

Why shouldn't the prevailing wage be valid during the entire 180 day period?

It seems irrational that a PW issued for only 90 days should not be accepted as valid if the 90 days fall within the 180 day recruitment period. Perhaps this is one of the reasons the DOL setup a federal prevailing wage determination at the National Processing Center.

Since the prevailing wage regulations have recently been changed and assigned to the National Processing Center, perhaps the Employer could argue that the DOL should accept the prevailing wage determination, because under current guidelines, it would have been valid anyway!

Another consideration is that since there is a conflict between these two laws, the federal law should trump the state law. The employer should argue that the state law unjustly limited the federal law by requiring the application to be filed by the 90th day, instead of the 180th day.

Although the issue is somewhat moot, because states no longer are in the business of providing Prevailing Wage determinations, the employer should file an appeal to BALCA for several reasons. First, the employer cannot refile as DOL suggests in its denial of the PERM application, because too much time has passed and the 180 day recruitment period is no longer valid.

Also, wage information is not required in the newspaper ads, so it would not be relevant to raise the issue of who placed the ad before or after the prevailing wage determination.

The correct prevailing wage was used throughout the process, on the PERM Form, and in the 30 day job search at the SWA employment job bank.

In HealthAmerica, the first PERM case decided, the Board of Alien Labor Certifications disapproved of denials based on procedural, non-substantive errors.

This concept would appear to apply in this case as well.  The incongruity of the time periods, i.e., the 90 day Prevailing Wage period under state law and the 180 day Recruitment Period under the federal law is clearly a regulatory misfit. 

Although a Motion to Reconsider may be filed with the Certifying Officer, it is doubtful that the CO would approve the case, as he would be required to "violate" the letter of the law. In this case, where the law just does not work, the matter should be brought before the Board of Alien Labor Certification Appeals to adjudicate.

The principle is important, because there are other state-federal conflicts of law, yet to be discovered and rectified. One involves the current controversy about wage ranges, since the PERM Form 9089 and the SWA wage questionnaires (different in each state) present inconsistencies that may result in a flawed interpretation, especially where the alien met the minimum requirements to enter the position, but earned a higher income because of additional years of experience. These cases involving DOE salaries (depends on experience) do not translate well from the state PW questionnaire to the PERM Form.

The Board can find judicial solutions to these puzzles, but the Employer has to present a well organized appeal for the Board to consider!