Please look at the previous Blog entry which discusses some pointers for Employers to deal with the current unavailability of prevailing wages.
Employers who must file before obtaining a prevailing wage to comply with the 180 day recruitment filing requirement may consider sending their applications to the Department of Labor by mail, rather than filing electronically. The electronic system does not permit filing 9089 without filling in the prevailing wage section, but a paper-filed application might preserve the employer's filing date by showing a bona fide effort to comply with the (non-functional) regulations and procedures stipulated by DOL.
Another approach may be available to Employers filing Schedule A applications. These are job opportunities which are "pre-certified" on DOL's Schedule A. Although they do not require filing Form 9089, these jobs still require a prevailing wage determination prior to filing an I-140 petition with DHS. Employers may consider filing these I-140's without the prevailing wage and then sending the prevailing wage at a later date, as they have been denied the opportunity to obtain a timely prevailing wage determination from DOL.
The appeal method for prevailing wage determinations is described in the regulations. The failure to provide a prevailing wage determination may be seen as an appealable issue. To further protect their rights, Employers may simply appeal this issue.
The point is that the government will have to decide how to deal with the inequities resulting from the failure to provide prevailing wage determinations to Employers whose applications and petitions are time sensitive and can not be further delayed. This issue may very well be litigated as time goes on.
The Regulation for Schedule A applications 656.15(b)(1) requires "An application for Permanent Employment Certification form, which includes a prevailing wage determination in accordance with 656.40 and 656.41."
Of course, Schedule A applications must be filed not with DOL but directly with DHS. While no recruitment is mandated, a Notice of Filing is required under 656.10 (posting for 10 business days and in any in-house media where such posting may occur) as well as a prevailing wage determination.
The prevailing wage request is filed under authority of 20 CFR 656.40 and may be appealed under 656.41. "The employer must request a PWD from the NPC, on a form or in a manner prescribed by OFLC."
Unfortunately, the Perm Regulation does not require the Office of Foreign Labor Certification to issue a prevailing wage determination within a specific period of time, however, an FAQ states, "
Answer: "The NPWHC is working to provide Prevailing Wage Determinations as quickly as possible, in a first in, first out order. However, determination times may fluctuate as the Department works to centralize processing of PWD requests at the NPWHC. Therefore, we continue to encourage requestors to submit their ETA Forms 9141 at least 60 days in advance of the employers' initial recruitment efforts."
One strategy for Employers would be to treat a response taking more than 60 days as a denial, assuming that the Employer has diligently prodded the DOL to issue the response in timely fashion.
One difference between Schedule A and Basic Labor Certification processing is that, since Employers do not have to engage in recruitment, the requirement to begin recruitment after receiving the prevailing wage or completing recruitment prior to the expiration of the prevailing wage validity period does not exist.
In emergency situations (where the Employer cannot wait until DOL may again begin to issue prevailing wage determinations), an I-140 might be filed under Schedule A with a copy of the request for prevailing wage and/or for appeal of denial (because of no response received within 60 days).
It is possible that the DHS may remand such an application and request a copy of the prevailing wage determination. The Employer may then attempt to provide the prevailing wage determination nunc pro tunc. Such an error might be harmless, if the wage offer in the petition is equal to or higher than the prevailing wage.
Ultimately the DOL, either by policy memorandum, BALCA decisions or other regulatory procedures, should provide some mechanism for Employers to file applications for PERM in a timely manner, despite the fact that the prevailing wage unit of DOL is not functioning.
Federal Court action may also be a remedy, as the failure to issue a PWD is appealable to the Federal Courts, however, this will be the subject of a future Blog posting.