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PERM raises a host of questions which remain unanswered by DOL. For example, prevailing wage determinations are determined at this time according to the current 2-tier wage level, until DOL promulgates memoranda or rules to implement the statutorily mandated 4-tier wage level on or before March 8th. While employers are entitled, as a matter of procedural right, to a reasonable transition from the 2-tier system to a 4-tier system, DOL has provided no reassurance to those currently preparing PERM cases who are recruiting on the basis of a wage obtained under the 2-tier system. Further, the new PERM rules define prevailing wage differently. Under current rules, wages under both the Davis Bacon Act (DBA) and the Service Contract Act (SCA) supercede OES wages; with PERM, OES wages will supercede DBA and SCA wages for most applicants. This discrepancy is hard on employers who have to obtain prevailing wages today from their SWAs to be ready to file PERM cases on March 28th. Meanwhile, many find job orders idiosyncratic with no uniformity from state to state and even within each state. DOL has not issued any guidance to the SWAs on PERM-mandated job orders. Both prevailing wage and job order determations are required to file a labor cert. With many questions raised and no answers from DOL, attorneys guiding employers are between a rock and a hard place. We urge DOL to quickly remedy the dearth of information available and issue guidance on matters related to PERM. Attorneys frustrated with the lack of information from DOL on PERM may want to urge their clients to let Congress know about the situation.

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