The temporary suspension of prevailing wages by DOL for PERM cases should not present a serious problem for most Employers, unless the proposed PERM filing is time sensitive to preserve the alien's right to extend H-1B visa privileges.
The regulation requires that the prevailing wage be obtained BEFORE the PERM recruitment begins or prior to filing the results of PERM recruitment.
Although it is not now possible to obtain a prevailing wage determination until after October 1, 2011, Empoyers may go forward with PERM appilcations in the following manner:
- Calculate the prevailing wage using any on-line wage source like the Foreign Labor Certification Wage Wizard. Use the May 9, 2005, version of the FAQ's on prevailing wage and carefully calculate the prevailing wage.
- Prepare a 30-day job order based on the prevailing wage that you calculated and file with the SWA.
- Prepare a 10-day Notice of Filing and Post on the Employer's bulletin board with the same wage.
- Advertise the position two Sundays without including the wage.
- If the job is professional, advertise three additional forms of recruitment, but without including the wage amount.
- On October 1, if the wage you calculated is incorrect, use the new wage to revise and refile the 30-day job order and the 10-day Notice of Filing. Otherwise, you are good to go!
- Remember that the Employer must offer the prevailing wage or the actual wage, whichever is higher.
- In many cases the actual wage will be higher than the prevailing wage, but the Employer can calculate the prevailing wage taking into consider the conditions described in the May 9, 2005, FAQ on Prevailng wage Guidance. When in doubt, the Employer may use the next higher wage level to be on the safe side.
Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. 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.