Employers wanting to sponsor employees for H-1B's or immigrant visas will face new legal procedures beginning January 1, 2010. Employers will need to obtain the "prevailing wage determination" through a centralized Department of Labor office in Washington D.C..
The "prevailing wage" is the average wage paid to similarly employed workers in the requested occupation, in the same geographic area. The immigration laws require that the hiring of a foreign worker will not adversely affect the wages of U.S. workers working in the occupation in the area of intended employment. To comply with the law, the Department of Labor requires the wages offered to the foreign worker to be at least the prevailing wage in the geographic area of employment.
Employers sponsoring foreign employees for H-1B's, H-2B's, E-3's, and for employment-based green cards must establish that the wage offered is at least as high as the prevailing wage. In some instances, the employer can rely on published date to make to determine the prevailing wage themselves. In other instances (i.e. the employment-based green card process), employers must submit a request to the Department of Labor to make a Prevailing Wage Determination.
Up until now, employers submitted a form online or via fax to the Department of Labor's State Workforce Agency in their own particular state. When this law office sought a Prevailing Wage Determination, we would fax a Prevailing Wage Request form to the California Employment Development Department. If we wanted to recommend a particular job classification or wage level, we would include that supporting documentation with our fax. We would usually get a faxed response within a few days. If our result showed that there was a misunderstanding, etc., we had the name and phone number of the person who made the Prevailing Wage Determination, and we could call and talk to them.
All this will change on January 1, 2010. Instead of individual state workforce agencies making prevailing wage determinations, all such determinations will be made by one Department of Labor office in Washington D.C. Until the Department of Labor puts this process online, employers must MAIL all Prevailing Wage Requests on ETA Form 9141 to:
U.S. Department of Labor Employment and Training Administration National Prevailing Wage and Helpdesk Center Attn: PWD Request 1341 G Street, NW Suite 201 Washington, DC 200053142
If employers include their e-mail address on the Form 9141, National Prevailing Wage and Helpdesk Center (NPWHC) will respond via e-mail. The NPWHC states that they will handle all prevailing wage requests on a first-in first-out system. They have not provided an estimate as to how long it should take, but recommend that employers submit it at least 60 days before they need it.
I did a double take when I read 60 days. Employers are used to obtaining prevailing wage requests in no longer than a week. If it does in fact take 60 days, many employers and employees will miss critical deadlines while waiting for a prevailing wage determination. Since determining the prevailing wage is usually the first step in the employment-based green card process, employers who wait to begin this process may inadvertently wind up filing their PERM application too late for their employee to take advantage of legal provisions that allow H-1B employees to renew their H-1B status beyond six years if a PERM case has been pending long enough.
Another issue with the new NPWHC system is that employers will not be able to submit additional documentation with the form. Employers will not be able to recommend a particular occupation or wage level. Additionally, instead of just picking up the phone and talking to the analyst who made the determination, employers will have to follow a formal process and mail in appeals to the prevailing wage determination. Overall, while this new process should create uniformity in decisions, it will undoubtedly be slower and eliminate access to analysts.