US DOL Imposing Excessive Prevailing Wage Determination on Some Physician PERMs

November 8th, 2010

Since the July 2010 issuance of the most recent prevailing wage (PW) data by the Department of Labor (DOL), there is no PW data for physician internists for many regions in the Boston area.  Where there is no PW data available for the specific code of the position, the DOL assigns the case an overly high wage of $80 per hour or $166,000 per year, regardless of the location of the employment nationwide.  This will have a deleterious effect on PERM labor certification applications for physicians in these areas who are not earning $80 per hour, or $166,000 annually.  This could be especially dire for the supply of primary care internists in the Boston area, especially since Massachusetts has instituted a type of universal health care system under the Connector.  In a recent PERM case I have been working on for a primary care internist for a nonprofit clinic in Boston, DOL insists on imposing this PW determination despite the fact that independent surveys have shown that such physicians in nonprofit clinics in the area earn far less. I have argued that the residual physician category, with a much lower wage, should apply where there is no data for an internist and the facility is a nonprofit entity.  This obviously fell on deaf ears. 

To make matters worse, there is no accessible private wage survey that satisfies the strict requirements of the DOL for PERM purposes.  An employer could conduct its own survey, but this is extremely onerous and time consuming on most clinics and health care facilities. 

Luckily, my client will be able to file for a national interest waiver (NIW), since the facility is in a health professional shortage area (HPSA).  For those physicians serving in a HPSA or medically underserved area (MUA), they may apply for legal permanent residency through this special type of NIW.  They must commit themselves to serve the petitioner for five years (or at least in the HPSA or MUA) and a letter from the state’s public health agency must be submitted alongside other evidence of the physician’s eligibility.  The critical benefit of the NIW in my client’s case is that there is no prevailing wage requirement. Rather, the petitioner bypasses the PERM labor certification stage and files the Form I-140 immigrant visa petition directly with the regional USCIS service center.  The petitioner can be the physician herself and the physician can simultaneously file the Form I-485 application to adjust status (provided an immigrant visa number is available), although this cannot be approved until the physician has served for five years.

USCIS Updates Fiscal Year 2011 H-1B Cap as of October 29, 2010

November 8th, 2010

As of October 29, 2010, USCIS has received approximately 45,600 H-1B petitions subject to the FY 2011 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 16,700 H-1B petitions subject to the FY 2011 US master’s degree cap, of which there are 20,000 visas each fiscal year.  If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that we may have another year where the cap will not be reached until the end of this year or even later.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2011, requesting a start date of October 1, 2011. 

Remember that as of November 23, 2010, the filing fees for the I-129 petition will increase from $320 to $325.  The ACWIA Fee and the Fraud Fee will remain the same.  Also the premium processing Form I-907 fee will increase from $1,000 to $1,225.  Filing via premium processing does not strengthen the petition for approval.  Rather, it just quickens the processing time from around the current four to five months to 10 business days, provided that USCIS does not request additional evidence.