We previously wrote about the fact that the federal government would take over the prevailing wage function of PERM. The change would remove this function from the state governments. According to the PERM Rule of 2005, the states continued to participate in PERM processing in two ways: (1) Prevailing Wage Determinations and (2) Placement of 30-day Job Orders in the State job service offices.

The interplay between federal and state governments is a topic of importance to Americans, whose government is based on minimal federal control and maximization of states rights.

Prior to the PERM Rule of 2005, the states played a very large role in the labor certification process. They received applications, reviewed them and "assisted" Employers to process the applications. Because of differences in state procedures and politics, the results varied. Some states were positive to the idea of assisting Employers to hire foreign workers and assisted in any way possible. Other states were hostile and created unnecessary delays and obstacles. In fact, on the eve of the PERM Rule in early 2005, some states were taking well over two years to review initial labor certification processing, while others were completing initial review in a month or two.

The procedures to determine prevailing wage are themselves unclear. There are many issues that arise and must be determined in the judgment and discretion of the agency. Under the State system, prevailing wage determinations varied substantially around the country. Perhaps for this reason, the federal government decided to place the responsibility in a federal office.

The announcement regarding centralization of prevailing wage determinations was described in the Federal Register on December 4th, 2009, and the DOL issued a set of FAQ's.

The new policy applies to Prevailing Wage Determination requests for H-1B, H-1B1 (Chile/Singapore), H-1C (if reauthorized by Congress), H-2B, E-3 (Australia) programs, and the permanent labor certification program (PERM). The new procedures do not apply to H-2A temporary visa applications.

Employers must use ETA Form 9141 to request a PWD from the National Prevailing Wage Help desk. The form an instructions are available at the OFLC website: http://www.foreignlaborcert.doleta.gov/form/cfm.

One might expect the federal government to provide more consistency than 50 individual states, however, even at the federal government level, we will need to see whether the personnel providing prevailing wage determinations will work together with consistency or produce independent and differing determinations.

Unfortunately, at least at the outset, the new prevailing wage determination process has resulted in unusual and unnecessary delays. The procedure requires the applications to be sent by mail (or courier) to the Prevailing Wage Help Desk in Washington. They cannot be sent by fax or by e-mail.

The address is the following:

U.S. Department of Labor, Employment and Training Administration, National Prevailing Wage and Helpdesk Center, Att: PWD Request, 1341 G Street, NW, Suite 201, Washington, DC 20005-3143.

Confirmations are then sent to Employers by e-mail, but if the Employer does not provide an e-mail, the prevailing wage determination will be sent by regular mail. The DOL has stated that prevailing wage determinations will now take 60 days. We are reminded, of course, that PERM applications themselves were supposed to take no more than 60 days, but some of them, with audits, take 3-4 years. This time schedule is similar to the pre-PERM epoch when applications took 5-6 years in some parts of the country. The PERM process promised to remove delays and enable quick, electronic determinations of cases.

Unlike H-1B prevailing wage determinations, which can be done by Employers on-line without applying through the government, PERM cases cannot be filed until a prevailing wage is received from the government Prevailing Wage Help Desk in Washington.

You have the ability to check the status of this application at any time by accessing your iCERT On-Line Account at http://iCERT.doleta.gov/.

Regarding pipeline cases, they will continue to be processed under the old system, if received at DOL by December 31, 2009. Duplicate Prevailing Wage Determinations may be obtained from FLC.PWD@dol.gov. The FAQ promises that the NPWHC will send an exact duplicate of the PWD to the requester named on the ETA Form 9141.

The FAQ's also explain how information may be provided for alternate (non-OES) prevailing wage determinations, or for unusual situations with multiple work-sites.

Since the process has just begun, there will inevitably be many problems that should be resolved as technicians get the "bugs" removed from the system. After that, we will wait to see if the federal prevailing wage system will work better than the previous state-administered system.