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.