Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

The Department of Labor’s Employment and Training Administration has issued a final rule delaying the effective date of a new H-2B wage calculation regulation.

Throughout 2011, the DOL and the Small Business Association (among other interested groups) have been at odds over the proposed change to the way prevailing wages are calculated for H-2B workers.

Rather than use the traditional wage calculation (from a market survey), the proposal calls for employers to pay H-2B (and U.S. workers recruited in connection with a temporary labor certification application) a “wage that meets or exceeds the highest of the following: the prevailing (market) wage, the federal minimum wage, the state minimum wage or the local minimum wage.”

Thus, as successfully argued by challengers of the proposed rule, DOL would be artificially inflating the prevailing wage assessments by relying upon the federal minimum wage (which is usually higher) for most temporary jobs. The determinations being made by DOL at the end of this year have been onerously high—such that the H-2B program was no longer economically viable.

Most employers would prefer to rely upon the market wage rather than the wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment,

Mounting political pressure from the agricultural, hospitality, travel, and landscape-maintenance industries, among others, has prompted President Barack Obama to include a prohibition to the Government’s provision of funding to the DOL to administer the proposed rule in the continuing appropriation resolution.

Bottom line: it appears that the business community was able to sway the White House to help prevent the DOL from effectively shutting down the H-2B program. At the DOL’s artificially inflated wage rates, an employer would be hard pressed to find a way to make the program work. When competitors are able to pay the lower market wage for employees, it makes no sense for an employer to apply for an H-2B certification, at a much higher wage.

For now, the H-2B guestworker program is still viable for employers looking to fill peakload or seasonal positions with foreign workers. But it’s only a matter of time before DOL takes another crack at shutting-down the H-2B process.
 

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AUTHOR - Sujata Ajmera

Most employers with foreign national employees know that working with the Department of Labor (DOL) is an essential first step to securing permanent residency status on behalf of those employees. The permanent employment certification process (the “labor certification” or “PERM” process) requires employers to work directly with the DOL on two occasions – first, to obtain a Prevailing Wage Determination from the DOL’s National Prevailing Wage Center (NPWC); and, second, to obtain a Permanent Labor Certification from the DOL’s Employment & Training Administration (ETA).

Traditionally, it takes approximately four weeks to get a Prevailing Wage Determination from the NPWC. There has never been a way to expedite issuance of a Prevailing Wage Determination. The wait is now longer.

Due to pending litigation against the DOL, there is now a significant backlog in the NPWC’s review and issuance of Prevailing Wage Determinations for PERM cases. Consequently, a Prevailing Wage Determination may take approximately 12 weeks. This has important implications for certain foreign workers.

The American Competitiveness Act of the 21st Century (AC-21), enacted in 2000, allows an employer to extend a qualifying employee’s H-1B status beyond the six-year maximum if a PERM application is filed on or before the expiration of the employee’s 5th year of H-1B status. The purpose of AC-21 is to minimize the adverse effect the lengthy employment-based permanent resident process has on an employer’s ability to retain qualified foreign national workers and to guarantee the employer the ability to engage in continuous, uninterrupted business throughout this process. Sponsoring employers are now finding themselves unable to secure AC-21 protection for employees whose 5th year of H-1B status expires within the next few months.

The unforeseeable, drastic delay in issuance of Prevailing Wage Determinations has not been addressed by the DOL. The agency has not provided a mechanism to expedite or prioritize wage issuance based on critical timing issues. Employers in this predicament are at risk of losing valuable employees or being forced to transfer them abroad (if possible) in order to remain compliant with applicable regulations.

From an employment law perspective, those employers who are in this predicament may have no option but to consider filing a federal court mandamus action to compel the DOL to adjudicate Prevailing Wage Determinations requests within a reasonable time. This may be the fastest and most effective way to remedy a very serious problem.

If you are an employer with foreign national employees who are at risk of losing AC-21 eligibility in the next several months, please contact a Jackson Lewis attorney to discuss the best strategy to satisfy your employment needs and obligations. We will continue to monitor development at the DOL and National Prevailing Wage Center.
 

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On April 1, 2010, Secretary of Labor Hilda L. Solis announced DOL’s “We Can Help” campaign in Chicago, where she told an audience of union leaders and community members that the DOL “will not allow anyone to be denied his or her rightful pay — especially when so many in our nation are working long, hard and often dangerous hours." 

The nationwide "We Can Help" campaign, spearheaded by DOL’s Wage and Hour Division (WHD), is an outreach program directed at the nation’s low-wage and “vulnerable” workers, such as workers in construction, janitorial services, hotels, food services and home health care services industries. The program also addresses topics such as rights in the workplace and how to file a complaint with the WHD to recover wages owed. Additionally, the campaign underscores the awareness that wage and hour laws apply to all workers in the U.S. regardless of their immigration status. In conjunction with this enforcement program, DOL has added more than 250 field investigators nationwide to help in this campaign.

Additionally, the inter-governmental agencies’ concerted enforcement efforts should not be overlooked. An immigration worksite visit could potentially involve a concurrent or subsequent DOL WHD audit and vice versa. In DOL’s efforts to protect the “vulnerable” workers in the U.S., it is yet to be seen if DOL will follow the Immigration and Customs Enforcement (ICE)’s lead in potentially offering incentives to undocumented workers in order to gain cooperation from them to detect and determine an employer’s liabilities.

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