My colleague, Paloma Feghali, and I would like to discuss PERM processing during this time of year, where submission of prevailing wage applications will result in a 90 day validity period of the wage determination. If you do not plan carefully, you are looking at a smaller window of time to submit PERM applications.

As many of you may know, the PERM process involves the submission and determination of a Prevailing Wage Application, along with a recruiting period where an employer must post the sponsored position in certain advertising mediums for a specific period of time in order to comply with Department of Labor (DOL) regulations for testing the U.S. labor market. For a more detailed walk-through of the PERM process, please visit my PERM FAQs.

An employer generally has 2 options when deciding when advertising will begin:

1. An employer can run advertisements before the prevailing wage is received
2. An employer can run advertisements after the prevailing wage is received

Advertisements are always valid for 180 days. However, the validity of the prevailing wage determination can fluctuate between 90 days to 1 year depending on when it is submitted. The determinations are issued by the National Prevailing Wage Center (NPWC). The Foreign Labor Certification Data Center is the location of the online wage library for prevailing wage determinations. Based on wage information found there, we can anticipate the wages that will be issued for certain positions. Each year new wage data is provided to account for wage fluctuations in the market and the wages are updated starting July 1st. Because prevailing wage determinations must be valid for at least 90 days, any wage determinations issued in the 90 days prior to July 1st (between April 2nd and June 30th) will be good for a 90 day period. If issued after, they are typically valid until the following June 30th.

Note: According to the DOL, if any advertisements begin before the prevailing wage is issued, the PERM application(s) must be submitted by the prevailing wage deadline or by the advertisement deadline, whichever is earlier. But, if ALL advertisements begin after the prevailing wage is issued, the deadline will be based on the date the initial advertisement expires.

Example 1:

A prevailing wage application is submitted for the position of Software Engineer today, March 03, 2016. Currently prevailing wages are taking 2.5 months to be issued. Therefore, in this example, we will expect a determination around May 17th. Because the wage determination is issued within the 90 day period prior to July 1st, the validity period will be for 90 days: May 17, 2016 through August 15, 2016.

Example 2:

A prevailing wage application is submitted for the position of Software Engineer on May 01, 2016. Currently prevailing wages are taking 2.5 months to be issued. Therefore, in this example, we will expect the determination around July 15, 2016. Because we are out of the 90 day window prior to July 1st, the determination will be valid until June 30, 2017.

Under Example 1, which is relevant to the topic today…

If the employer chose to begin advertising before the prevailing wage was issued, then the deadline date to file the PERM application(s) would be based on the prevailing wage end date of August 14, 2016.

If the employer chose to wait to begin ALL advertising until the prevailing wage was issued, then the employer would be able to file after the prevailing wage deadline date of August 14, 2016. The deadline in this instance would be 180 days from when the initial advertisement began. Under this situation, the employer would have more time to file the PERM application(s) because the deadline would extend past August 14, 2016. 

Strategy:

For most of the year, it can be a win-win situation to begin the advertisements while waiting for the prevailing wage. The employer will be able to file sooner, since most of the advertising will be done by the time the prevailing wage is issued, and the employer will often have 180 days from the first advertisement to gather any remaining information from its beneficiaries before filing the application(s).

However, when employers are expecting wage determinations issued between April 2nd and June 30th, they may want to think more carefully about whether they want to begin the advertisements before the prevailing wage determination is issued. Although they would still be able to file sooner, the validity period for the advertisements would essentially be cut short due to the 90 day validity of the prevailing wage. This point is especially important for employers who tend to advertise for multiple openings that they cannot fill. It may be more beneficial for high-volume employers to wait to begin all advertising until after the prevailing wage is issued during this time period.

Because there is so much involved in making this decision, it is always best to contact a qualified immigration attorney to help navigate you through the process in order to come up with the proper solution for each individual case.