Prevailing Wage Determinations - Klasko, Rulon, Stock & Seltzer, LLP

Frequently Asked Questions* Prevailing Wage Determinations through DOL’s National Processing Center Q.

What is a ‘prevailing wage’?

A.

A prevailing wage is a rate of pay calculated based on the average wages in a particular geographic area for a given employment position. In the immigration context, it is used as a measure of the minimum allowable wage to be paid by employers seeking to employ a foreign national in certain nonimmigrant classifications (H-1B, H-2B, H-1B1, E3), or sponsor a foreign national for permanent residence through the labor certification process (PERM).

Q.

How can I obtain a prevailing wage determination (PWD)?

A.

Effective January 1, 2010, all prevailing wage requests (PWR) are submitted to the U.S. Department of Labor’s (DOL) National Prevailing Wage Center (NPWHC) on Form ETA9141. Requests may be made either through the iCert portal, http://icert.doleta.gov/, or by post to U.S. Department of Labor Employment & Training Administration National Prevailing Wage and HelpDesk Center ATTN: PWD Request 1341 G Street, NW – Suite 201 Washington, DC 20005 – 3105 DOL has indicated a preference to receive requests via the iCert portal.

Q.

Can I use the same PWD for the H-1B and for PERM? Or the same ETA-9141 for multiple PERM applications for the same position?

A.

Yes. Presuming the position description and requirements are identical, and presuming the prevailing wage is still valid, you may use it more than once.

*

These answers are provided to questions received from participants in the Klasko, Rulon, Stock & Seltzer, LLP webinar on prevailing wages on March 31, 2010.

Prevailing Wage Determinations through DOL’s National Processing Center

Q.

Must I request a prevailing wage determination from DOL?

A.

It depends. If a PERM labor certification application is being submitted, the answer is yes. A formal PWD issued by the DOL is required for every PERM filing. However, the same is not true for petitions for H-1B, H-1B1, and E-3 nonimmigrant classifications. For these classifications, a DOL PWD need only be obtained if the employer wishes to take advantage of the DOL’s ‘safe harbor’ provisions.

Q.

What is Safe Harbor?

A.

Safe harbor is the term used to refer to the DOL’s regulation that states that “In all situations where the employer obtains the PWD from the NPC, the Department will deem that PWD as correct as to the amount of the wage.” Therefore, the employer is “safe” from investigations questioning the validity of the prevailing wage.

Q.

Is safe harbor really safe?

A.

For the most part. However, the protection offered by safe harbor may not be as comprehensive as many employers believe. While the DOL may not question the wage itself, they may question the information provided on the ETA-9141 to determine the wage. For example, DOL may investigate if the job description was accurate, sufficiently detailed, and all requirements articulated.

Q.

Are there other disadvantages to using safe harbor?

A.

Possibly. For one, the current DOL processing time for a PWD is around 60 days. Since the PWD is needed to file the Labor Condition Application (LCA), it may increase the lead time for filing an H-1B to 10 weeks. For another, if the wage appears to be inaccurate and is completely unrealistic, the employer may have to accept it as valid and raise the offered wage in order to proceed with an H-1B, as noted below.

Q.

Can I challenge an unrealistic/incorrect PWD?

A.

Absolutely. There are a number of avenues to challenge a PWD. If it appears to have a technical error, for example, or the information on the PWD appears not related to the ETA-9141, email [email protected]. For non-technical errors, the first step would be to request a redetermination through the iCert portal. The reason for the request should be selected from the drop-down list, and a brief explanation of why the PWD is believed to be incorrect should be noted. This appears to be the quickest way to challenge the wage, sometimes taking less than two weeks.

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If the redetermination is denied, the PWD can also be challenged by requesting review by the Center Director, which must be done within 30 days of receiving the response on the redetermination. If that too is denied, an appeal may be made to the Board of Alien Labor Certification Appeals. This will likely take at least a year, if not longer. Q.

We are within 1% of the wage, is there anything we can do short of raising the wage?

A.

Under the regulations, the employer is obligated to pay 100% of the prevailing wage.

Q.

Is there guidance on completing the ETA-9141?

A.

Yes. DOL has provided guidance on a number of key issues, noted below. 1. ACWIA wage: On the ETA-9141, item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: “***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e). ***” (March 2010 DOL FAQs). NOTE: The ACWIA wage is applicable to institutions of higher education, nonprofit organizations affiliated with an institution of higher education, and nonprofit research institutions. Please note that the ACWIA wage must be used by such institutions, even if higher than the “all industries” wage library for the same location and position. 2. Entry Level Positions (including Postdoctoral Fellows): According to NAFSA’s minutes from the March 25, 2010 DOL Stakeholder’s meeting, “DOL recognized that post-doc positions are typically entry-level training positions that should not be calculated automatically and PWDs should be assigned based on actual duties of the position.…Users are encouraged to… reference the entry-level nature and training component of post-doctoral research [and] … to include the same terminology under job duties.” 3. Work Schedule: According to NAFSA’s minutes from the March 25, 2010 DOL Stakeholder’s meeting, the work schedule is not meant to be static. If a position is 35 – 40 hours per week, but the employee has a flexible schedule, it is fine to note “9am-5pm” as the standard schedule. 4. Travel: In response to AILA’s question at the March 25, 2010 DOL Stakeholder’s meeting regarding the relevancy of travel to a PWD, the DOL noted that the ETA9141 is used for several programs (e.g. PERM, H-2B, H-1B) and may not be relevant. 5. Worksites: If there are multiple worksites, this should be addressed at D.c.7 and 7a, and is distinct from “travel” as noted above. The form allows you to add as many worksites as necessary. DOL further clarified that multiple worksites on a


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single campus (within the same MSA) do not need to be listed, and noted that the main office or headquarters can be used instead. Q.

I followed this guidance but still received an unrealistic wage? Can I ignore the DOL’s PWD and do my own determination?

A.

The DOL regulations at 20 CFR 655.731(a)(2)(ii)(A) state that “if employer is unable to wait…for the prevailing wage…or for the CO and/or BALCA to issue a decision [on a request for redetermination], the employer may rely on other legitimate sources.” This would seem to suggest that employers are not required to wait for the PWD for nonimmigrant petitions. However, the regulations also add that “if the employer later discovers, upon receipt of PWD…that the information relied upon produced a wage below the final PWD…no violation will be found if the employer retroactively compensates the…nonimmigrant.” Some attorneys believe that, if the employer does not wait, but later receives the PWD, the employer may be bound by it. A best practice for employers who file the ETA-9141 for nonimmigrant petitions and cannot wait for the PWD may be to withdraw the ETA-9141 to avoid receiving a conflicting wage.

Q.

How do I do my own determination?

A.

The DOL provides step by step instructions to make a prevailing wage determination. These instructions, available online at http://www.foreignlaborcert.doleta.gov/reg.cfm#PREVAILINGWAGE, are the same instructions used by Certifying Officers in making PWDs. Just as the Certifying Officers do, you should use the job description to determine the appropriate SOC-ONET classification from those available at http://online.onetcenter.org/. This will provide you with the relevant “Job Zone”, which defines the quantitative parameters for the amount of experience the DOL considers “normal to the occupation.” Once you have determined the SOC-ONET code and corresponding Job Zone, follow the DOL’s “Check Sheet for Use in Determining OES Wage Level” to complete the “Worksheet for Use in Determining OES Level.” These are Appendices B/C of the guidance noted above, which can be used to chart the employer’s job requirements against the DOL’s parameters of “normal to the occupation.” Comparing the amount of education, experience, special skills required by the employer to the SOC-ONET and Job Zone’s definition of “normal to the occupation” will yield a calculation of what wage level is appropriate. You may then determine which of the four levels of prevailing wage used by the DOL is correct. These are available at http://icert.doleta.gov/. Note that a wage cannot be lower than Level 1. Therefore, the worksheet always includes ‘1’ and points are added as necessary to reflect a more senior level. The


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highest level is Level 4, so even if the worksheet yields what would seem to be Level 10, it is still considered Level 4 because there is no higher wage. Since this process is trickier in theory than it is in practice, it may be beneficial to view some examples on using the guidance and the DOL’s Worksheet, available at http://www.klaskolaw.com/events-calendar.php?action=view&id=210. Q.

What are the advantages of doing the PWD without DOL?

A.

The primary advantage is expediency. If DOL continues to take 60 days for PWDs, it may not be feasible to wait for the PWD and then file and wait for the LCA. Another major advantage is that learning how to calculate the prevailing wage takes the mystery out of the process, and avoids having to challenge an unrealistic wage. Keep in mind that when you calculate the prevailing wage, you will still need to explain how you selected the SOC-ONET category and justify the wage level you determined to be appropriate. You must be able to honestly compare the employer requirements against the SOC-ONET range and select the best match, regardless of where the wage may fall.

Q.

If I do my own determination, do I need to submit the ETA-9141?

A.

For H-1B purposes, a DOL-issued PWD is not required. However, using the DOL’s instructions to make your own PWD does not qualify as a “safe harbor” wage. For PERM applications, a DOL-issued PWD is an absolute requirement. It may be a good idea to do your own calculation to predict the correct wage level, to determine the feasibility of a PERM filing. Moreover, the documents you use to calculate the wage can be submitted to DOL with the ETA-9141 to advocate for a wage.

Q.

If I do my own determination, what documents do I include in the Public Access File?

A.

A good practice would be to include those documents you used to determine the appropriate OES level. For example, if you used the DOL’s worksheet to calculate the level based on the SOC-ONET code and the OES wage, you may want to include the worksheet, the print out of the SOC-ONET description, and the OES webpage. You may also want to include a memo to the file explaining on what basis the SOC-ONET code was selected. You may also wish to include print outs of the position descriptions that were similar, but which you did not choose, along with an explanation of why you felt they were not as good a match as the position and wage you selected.


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Q.

There is no OES wage data in my geographic area for the relevant SOC-ONET code. What do I do?

A.

The regulations at 20 CFR 655.741(a)(2)(iii) note that if there is no data for the occupational category in the area of intended employment, the wage for jobs requiring a substantially similar level of skill within the area of intended employment should be used. If there are no substantially comparable jobs within the geographic area, it is appropriate to look at the occupational category in areas outside the area of intended employment. At the March 25, 2010 DOL Stakeholder’s meeting, DOL indicated that an FAQ on this topic would be forthcoming.

Q.

The relevant SOC-ONET code indicated “no zone set”; without the job zone, how do I determine the experience parameters?

A.

This is a great question, but at present, there is no great answer. While we await DOL guidance, a suggestion is to use the Job Zone for a similar type of occupation, and to document your choice in the public access file. For example, if the position is for a Biological Scientist, depending on the job duties, it may make sense to look at the Job Zone for a Microbiologist, or a Biochemist, or a Biomedical Engineer. Most important would be to explain the rationale for using the related occupation in the public access file.

Q.

The SOC-ONET code indicated a Job Zone 4, but for Education & Training, it indicated “No Code Set”. How do I determine the degree level that is considered “normal to the occupation”?

A.

This is another great question, for which there is no great answer. A suggestion would be to look at the detailed descriptions related to the relevant SOC-ONET at http://online.onetcenter.org/. There is usually a comment on the normal educational requirements, such as is noted below: Most of these occupations require graduate school. For example, they Education may require a master's degree, and some require a Ph.D., M.D., or J.D. (law degree). A conservative approach would be to default to the lowest degree level mentioned, a master’s degree, and add a point if a Ph.D. is in fact required. Another approach would be to research the occupation in the DOL’s “Occupational Outlook Handbook” and similar material to determine if there’s a sufficient basis to argue that a Ph.D. is the norm. The DOL guidance recognizes that adding points for wage levels should not be done “in an automated fashion.” However, whatever approach you choose, you should be prepared to justify it with documentation in the public access file.


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Q.

How do I distinguish between Education, Training, and Experience? What should be considered a “special skill”?

A.

Generally, education refers to the degree requirement. Appendix D of the November 2009 DOL Guidance defines the degree that is considered “normal to the occupation.” If the training and/or experience is part of the education, i.e. it was necessary to obtain the degree, it should not be counted twice. Moreover, consider the actual requirement. For example, is it a certain number of years of medical residency training, or is it that the employee is Board Eligible? Depending on the nature and extent of the training requirement, it may be considered a “special skill”. The DOL guidance indicates that the employer’s requirements should be compared to the SOC-ONET descriptions to determine if it merits a point, and provides a few examples of special skills, such as foreign language requirements (for other than foreign language teachers and interpreters), or licensure, unless it is a normal requirement to perform the duties at an entry level. Again the DOL states that the worksheet should not be completed in an automated fashion, and if the ‘special skill’ is already encompassed in education or experience, a point should not be added.

Q.

Are there any SOC-ONET categories that would work for medical residents?

A.

SOC-ONET categories that have been suggested include: 29-1199 – Health Diagnosing and Treating Practitioners, All Other 29-1069 – Physicians & Surgeons, All Other 29-1062 – Family & General Practitioners 29-1063 – Internists, General

Q.

Can I forego the OES and use a different wage survey?

A.

Yes. It is permissible to use alternative wage surveys.

Q.

How do I request a PWD based upon a source other than OES?

A.

On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, the employer should include a sentence surrounded by asterisks (***) requesting the use of a specific source, with the name, edition, revision and publication date as appropriate. Additionally, the employer may also need to provide supporting documentation, as explained in the questions and answers immediately following. In addition, after entering the employers’ job title in item D.a.1, enter the title or occupation name and code, as appropriate in square brackets.


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Example: D.a.6: *** Request SCA WD 950221 (Rev.23) Emergency Incident/Fire Safety Services *** D.a.1: Site Sample Technician [30210 Laboratory Technician] Q.

What documents do I need to send with a request to use an employer provided/published or employer-conducted/commissioned survey?

A.

According to the DOL November 2009 Guidance, to be acceptable, an employer must provide the following information pertaining to the survey: a. The full name of the published survey (acronyms are not acceptable); b. The publication schedule for the survey. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next anticipated release of the survey; c. When the data was collected; d. A description of the job duties or activities used in the survey; e. The methodology used in the survey: I. How the universe was defined; II. How the sample size was determined III. How the participants were selected; f. The number of employers surveyed for the occupation in the area; g. The number of wage value responses (employees) for the occupation in the area; and h. A list of employer participants or explanation of how the cross industry nature of the survey was maintained.


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