20 March 2017

PERM Issues to Consider Between Now & May

It’s that time of the year again, where submission of prevailing wage applications will result in a 90 day validity period of the Prevailing Wage Determination. My colleague, Paloma Feghali, and I, are revisiting this post from last year. 

The PERM process involves a recruitment period where an employer must post the sponsored position in certain advertising mediums for a specific period of time in order to test the U.S. labor market. In addition, an employer must obtain a Prevailing Wage Determination (PWD) prior to filing a PERM application.  

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 Determination is received
  2. An employer can run advertisements after the Prevailing Wage Determination is received

Advertisements are valid for 180 days. However, the validity of the PWD 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 PWDs. 

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 PWD is received, the PERM application must be submitted by the prevailing wage deadline or by the advertisement deadline, whichever is earlier. But, if ALL advertisements begin after the PWD is received, 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 20, 2017. Based on our cases, PWDs are taking an average of 2.5 months to be issued.

Here, we will expect a determination around June 03, 2017. Because the PWD is issued within the 90 day period prior to July 1st, the validity period will be for 90 days: June 03, 2017 through September 01, 2017.

(Normal processing times provided by the DOL are currently 4 months. Our examples are based on the current average we see in our office). 

Example 2:

A prevailing wage application is submitted for the position of Software Engineer on May 01, 2017. In this example, we will expect the PWD around July 15, 2017. Because we are out of the 90 day window prior to July 1st, the PWD will be valid until June 30, 2018.

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

If the employer begins advertising before the PWD is received, then the deadline date to file the PERM application would be based on the PWD expiration of September 01, 2017. 

If the employer begins ALL advertisements after the PWD is received, then the employer would be able to file after the PWD expiration date of September 01, 2017. The deadline would be 180 days from the initial advertisement start date. Under this situation, the employer would have more time to file the PERM application because the deadline would extend past September 01, 2017

For most of the year, it can be a win-win situation to begin the advertisements while waiting for the Prevailing Wage Determination. The employer will be able to file sooner, since most of the advertisements will be complete by the time the PWD is received.

However, when employers are expecting PWDs between April 2nd and June 30th, they may want to think about the issues presented above. 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 PWD.

This point is especially important for employers who tend to advertise for multiple openings that they cannot fill by U.S. workers. It may be more beneficial for high-volume employers to wait to begin all advertising until after the PWD is received 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 the process in order to come up with the proper solution for each individual case.

Krystal Alanis

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Email: [email protected] 

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Posted March 20, 2017 by KrystalAlanis in category "Labor Certification