Employers May Have to Delay Starting the Green Card Process

August 18, 2011

Silicon Valley employers who want to sponsor foreign employees for a green card may have to delay the process. The U.S. Department of Labor (DOL) announced last week that it will temporarily suspend processing of prevailing wage requests for permanent labor certification (PERM). This move is so that the DOL can comply with a U.S. Federal District Court order to redo over 4000 prevailing wage determinations for the H-2B category. The DOL will only resume prevailing wage determinations for PERM applications once the court-ordered H-2B redeterminations are completed. The DOL anticipates this will not be before August 31, 2011.

Employers wishing to sponsor a foreign national for an employment-based green card are often required to test the U.S. labor market through a regulated process referred to as PERM. As part of the PERM process, employers must recruit for the permanent position being offered according to specific recruitment methods established by the DOL. The wage offered for the position must be the higher of either: (1) the wage that the employer pays to workers in similar positions in the area of intended employment, or (2) the prevailing wage for the occupation in the area of intended employment, as determined by the DOL. The DOL issues prevailing wage determinations to ensure that the wages of U.S. workers are not depressed by lower-paid foreign workers. All PERM applications require a prevailing wage determination from the DOL. Most employers obtain the prevailing wage determination at the beginning of the PERM process, prior to starting any recruitment. This way, employers can be sure that the wage offered in the recruited position complies with the DOL regulations.

Now that employers cannot obtain the prevailing wage for a PERM case, they need to consider whether to put a temporary hold on starting new immigrant visa cases, or whether to alter their recruitment practices and proceed without first obtaining a DOL prevailing wage determination.

This news is particularly troubling for foreign national employees reaching the end of their fifth year in H-1B status. Employers can apply for H-1B extensions beyond the six-year maximum as long as the PERM application was submitted at least one year before the employee's H-1B stay will expire, and the employment-based green card process remains pending. In light of the DOL's temporary suspension of issuing prevailing wage determinations for PERM applications, H-1B employers and employees should consider other options such as a temporary assignment abroad. Time spent outside the U.S. does not count towards the maximum period of stay in H-1B status. A temporary assignment abroad could preserve enough H-1B time so that by the time the DOL resumes issuing prevailing wages for PERM cases, an employer could still submit the PERM application before the end of the employee's fifth year in H1-B status.