H-1B and PERM prevailing wage determinations (PWDs) came to a grinding halt in mid-June while the Department of Labor diverted its resources to comply with a court order on H-2B prevailing wage determinations.

The DOL advised us on September 9, 2011 that it anticipates returning to normal processing times (up to 60 days for PERM prevailing wage determinations) on the following schedule:

1. PERM PWDs are expected to return to the normal processing times by the first week in November.
2. H-1B PWDs are expected to return to the normal processing times by the second week in November.

A PWD must be obtained for PERM cases.  However, many employers also want to await a DOL PWD in H-1B cases as a “safe harbor” from later claims that the prevailing wage used, generally from the DOL Website, was not the correct wage.  It should be noted that the default prevailing wage on the DOL system for physicians if $80.00 per hour if no wage is published for the medical specialty is published on the DOL Website.

Note also that best practice at the present time for determining the “actual” wage being offered or paid is to deduct USCIS filing fees and legal fees from the “actual wage”.  Thus, even the wage being offered is far above the DOL prevailing wage, the employer can still be found liable for the legal and filing fees paid by the H-1B worker and end up with a back pay award.  Thus, employers are strongly encouraged to pay the USCIS filing fees and legal fees for the H-1B petition.