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S U Z A N N E B . S E L T Z E RK A T E K A L M Y K O V
K L A S K O , R U L O N , S T O C K & S E L T Z E R , L L P
R O B I N V . C A T M U RD A R T M O U T H C O L L E G E
Calculate, DON’T Speculate:Understanding the
Four Levels of Prevailing Wage
The Wonders of iCert
Effective January 1, 2010
Prevailing wage determinations (PWD) are issued by the Department of Labor’s (DOL) National Prevailing Wage and Helpdesk Center (NPWHC)
NEW prevailing wage Form ETA 9141
State Workforce Agencies (SWA) are no longer involved in PWD
iCERT Portal
Centralizes all DOL related processes
Web-based user account for LCA, requests for PWD, and (eventually) PERM
One stop shopping for DOL information on PERM, prevailing wages, related forms and FAQs
Goal to improve accessibility for employer and attorney while maintaining security
New Concerns/Considerations
Learning a new lingo: O*NET? Job Zone?
Continue to take advantage of ‘safe harbor’?
• Is it really ‘safe’?
• Is there time?Reliance on private surveys?
Costs?
How to get DOL to accept?
New Concerns/Considerations
Who is filing on behalf of your institution?Internal, Multiple Offices
External, Different Law Firms
Need for standardized job descriptions
Challenging erroneous determinations
Even more advanced planning for PERM
Plan for more time overall to file, regardless of the process you choose…
Prevailing Wage Lingo
Standard Occupational Classification – Occupational Information Network
(SOC-O*NET or O*NET for short)
Specific Vocational Preparation (SVP)
(used under the old Dictionary of Occupational Titles)
Job Zones
(used under the current O*NET system)
What it Means…Why it is Important
SOC-O*NET
http://online.onetcenter.org/Descriptor of duties, skills, knowledge for a given occupationBased on duties and skills required, O*NET occupation is assigned a ‘Job Zone’Job Zone designation ‘ranks’ the complexity of the job
What it Means…Why it is Important
Job Zone
(formerly ‘SVP’)SVP is pre-PERM system, but Job Zone is defined by SVP
Defines experience requirement, what is ‘normal’ to perform duties of a specific occupation
(for PWD, education is added separately)
Relates to the nature/difficulty of occupation’s duties
Corresponding SVP & Job Zones
Job Zone One:
Normal: No experience required
Examples: Cashiers; Maids; Waitstaff
Job Zone Two:
Normal: 3 Months to 1 Year
Examples: Bakers; Pharmacy Aides; Receptionist
Job Zone Three:Normal: 1 to 2 yearsExamples: Court Reporters; Dental Assistants
SVP & Job Zones: Experience Requirement
Job Zone Four:
Requires ‘considerable’ preparation
‘Considerable’ is SVP Range 7.0 < 8.0
‘Normal to Occupation’ is over 2 up to 4 years
*Degree/education considered separately
Examples: Archivists, Chemists, Materials Engineers
SVP & Job Zones: Experience Requirement
Job Zone Five:
Requires ‘extensive’ preparation
‘Extensive’ is SVP Range 8.0 >
‘Normal to Occupation’ is anything over 4 years
*Degree/education considered separately
Examples: Biologists, Economists, Statisticians
Appendix ‘A’ or ‘D’: Education Requirement
Same information in both: Appendix ‘A’ - appendix to Dec 2004 PERM regulations
Appendix ‘D’ – appendix to Nov 2009 DOL PWD policy
Professional Occupations Education & Training Categories
Defines “normal education” to perform job duties in specific O*NET codes
If degree required is above the “norm,” a higher wage level would be required
What Are the Four Levels?
Level 1: Entry/beginning level
Degree & experience at or below range
Level 2: Qualified/competent in basic tasks
Degree or experience at low end of range
Level 3: Experienced/exercise judgment
Degree or experience at higher end of range AND supervisory requirements or special skills
Level 4: Senior/management
Degree & experience outside the range
Perform Your Own PWD
Appendix B/C of Nov 2009 Policy Guidance
STEP 1: List Job Offer Rqmts & O*Net Rqmts
STEP 2: Compare Job Offer Experience with range Job Zone/SVP Range for O*NET code
STEP 3: Compare Job Offer EducationalRequirements with DOL Appendix for O*NET code
STEPS 4 – 5: Special skills, licensure/certification, or supervisory duties that go beyond O*NET
How It Works: Example 1
Financial Services Advisor in Bergen County, NJWork with senior investment professionals to assist in investment evaluation & identify areas for growth and risk reduction for clients.
Interview clients to determine current income, expenses, tax status, financial objectives & develop an effective investment strategy.
Perform research & investigate appropriate investment opportunities, implement financial planning recommendations & offer plans for reassessment.
BA in Economics, Business or Mathematics. No prior exp. req’d.
Financial Services Advisor
Personal Financial Advisors
13-2052
BA Job Zone 4Appendix D
Code 5
0 2 to 4 yrs
0
BA BA 0
0 0 0
0 0 0
1
03/31/2010
Kate
How It Works: Example 2
Post-Doctoral Research Associate in Boston, MAPlan laboratory experiments to confirm feasibility of processes and techniques used in the production of materials having special characteristics.
Conduct research on the structures and properties of materials, such as metals, alloys, polymers, and ceramics, to obtain information that could be used to develop new products or enhance existing ones.
Prepare reports of materials study findings for the use of other scientists and requestors.
Devise testing methods to evaluate the effects of various conditions on particular materials.
Ph.D. or ABD in Chemistry or closely related field
Post-Doc Research Associate
Material Scientist
19-2032
PhD or ABD
Job Zone 5 Appendix DCode 5 (BA)
0 4 yrs + 0
PhD or
ABD
PhD/ABD
not BA 0 (not 2)
0 0 0
0 0 0
1 (not 3)
Per DOL Guidance
entry level
03/31/2010
Robin
A Post-Doc is NOT level 3
DOL Guidance: “the process…should not be implemented in an automated fashion. The NPWHC must exercise judgment… wage levels should be commensurate w/ the complexity of tasks, independent judgment required & amount of close supervision received as described in the employer’s job opportunity.” (pg.13)
If Ph.D. is normal for entry level, don’t add 2DOL Guidance says Level 1 should be considered for a “research fellow, a worker in training or an internship.” (pg.7)
Consider disparity between a Post-Doc and a faculty hire if a Post-Doc comes back as a level 3 …
How It Works: Example 3
Data Analyst for University Psychiatric Research Center in Arlington County, Virginia
Perform statistical analysis on project data, using well-established statistical methods and techniques
Provide statistical analysis, format statistical data, prepare tables, charts, graphs and slides. Create data dictionaries and codebooks.
Perform statistical procedures including basic descriptive, univariate, and multivariate analyses; analyze multi-level data for hierarchical linear modeling for cross-sectional and longitudinal data and for continuous and discrete outcomes.
MA in Social or Behavioral Sciences +4 yrs exp. in a social science or medical science research setting.
Data Analyst
Statisticians15-2041
MA+
4 yrs exp.
Job Zone 5
Code 3
4 yearsOver 4 years 0
Masters 0
Statistical Analysis in medical research setting
Considered a special skill? If
yes then 11
0
2
Masters
Suzanne
03/31/2010
0 0
Special Skills
Special Skills Do not add a point unless it goes beyond O*NET for entry level.
Practice Tip: Clearly indicate on ETA -9141 if skills are included in O*NET for entry level; do the same for licensure.
Practice Tip: According to DOL guidance you can send in O*Net print-outs for DOL to refer to in deciding the PW.
It is unclear how will they will match the mailed materials to the request submitted online.
How It Works: Example 4
Research and Development Engineer for University in Los Angeles County, California
Develop, verify & validate newly developed or existing mathematical models. Liaise w/ software programmers throughout the full software development lifecycle including designing, developing, testing and debugging newly developed code.
Collaborate w/ engineering & marketing personnel to develop & market chemical risk management software for use in chemical plants
Use Fortran or C to develop viable mathematical models.
Ph.D. in Chemical or Environmental Engineering w/ knowledge of chemical engineering science & mathematical modeling. 5 yrs. exp. in Fortran programming applied to major engineering models.
If 3 O*NET Codes, How do we decide?
DOL guidance: “default directly to relevant O*NET occupation for the highest paying occupation” (p. 4)
What if nothing in ACWIA?DOL FAQ says to use All Industries database
If not in “All Industries”, DOL instructs that the wage for a comparable occupation should be use.
See DOL FAQ at: http://www.foreignlaborcert.doleta.gov/wages.cfm
BUT this conflicts with the regulation which says if nothing is listed in ACWIA use a comparable position in ACWIA
Research and Development Engineer
Chemical Engineers
17-2041
Ph.D.+
5 yrs expJob
Zone 4Code 5
5 yrs exp
2 to 4 years 3
Ph.D. BA 2
5 yrs exp w/ mathematical
modeling
Special Skill 1
No -- 0
4
Robin03/31/2010
Outside range, add 3
Can’t go higher than 4!
OES is the pits, what else?
What are our options?Collective Bargaining Agreement (CBA) must use if union employee
Must submit copy of CBA
A letter on institutional letterhead stating the relevant section of the CBA including job title and wage
A letter from the Union’s authorized rep, stating the relevant section of the CBA including job title and wage
Private, Published, or your own surveyAppendix F of Nov 2009 Guidance provides requirements for Wage Surveys
Practice Advisory: DOL is not recognizing many of the surveys
We didn’t use OES, now what?
What do we do with them?Do we want them blessed?
If yes, then submit through mail to be matched up with ETA-9141
Must specify source, with name, edition, revision, and publication date
Must explain the methodology used and ensure that it comports with DOL requirements
Do we just want them for our LCA file? What are the risks?
ETA 9141 Best Practices
Things to remember:ACWIA wage ***This employer is…***
Not enough room to list special skills? Try job description
Use ‘N/A’ for blank fields to avoid erroneous denials
Be aware that you must use correct language
OFLC Online Data Center– not OES
How detailed is too detailed? Will it impact the ETA-9089?
ETA 9141 mandatory in PERM cases.
iCert- ETA 9141
Practice Tip: Employer’s job title for the position
ACWIA/ Special Skills/ Travel, etc…
Practice Tip: If job schedule varies explain in the job duties section.
iCert- ETA 9141
Practice Tip: Consider if job duties require travel vs. attending conferences
Practice Tip: ACWIA should be listed with the job description—make sure to use ACWIA “magic language”
iCert- ETA 9141
Practice Tip: PW Request should only list the primary job requirement. This section should match the ETA-9089
iCert- ETA 9141
Practice Tip: To prevent erroneous denials make sure to complete all sections of the ETA-9141. Where no answer applies indicate N/A or none.
Practical Realties of 9141
Processing times
Level 3 for entry level?Try to describe the job “research fellow, duties performed under supervision of”
See pg. 6 of May 2005 guidance & pg. 7 of Nov. 2009 guidance
Must be precisely completed
Important Email Addresses:Technical glitches: [email protected]
Issues after PWD submission or request for duplicate PWD [email protected]
Challenging a PWD
Options for challenging DOL prevailing wage determinations:
Request Redetermination from CO who issued the PWD
In iCert go to PWD tab & click on determinations issued to request
Send add’l info to National Prevailing Wage and Helpdesk Center
NPWHC: 1341 G St Suite 201 Washington, D.C. 20005-3105
Challenging a PWD- cont.
Other options:
Challenge the PWD by requesting review by Center Director
Must do this w/in 30 days of date of PWD
Send request to National Prevailing Wage and Helpdesk Center
Appeal PWD to BALCA
Refile?
Complete new request online & mail in supporting documentation
Institutional Policy Concerns
Determine the best process for your institution and office (NPWHD, OES direct, private survey)
Again, centralized job descriptions are essential
Allow more time for reviewing job requirements, finding a good match in OES or in your survey, processing the worksheet.
If filing for an H-1B who will also be sponsored for a green card in the future, take care to ensure the job used for the pwd is also applicable for the PR case…sometimes they check…
Allow time, too, for staff training on new processes and requirements
Institutional Policy Concerns- cont.
Carefully check educational and experiential requirements sent to you by departments and schools – they are often non-standard (or made up…).
Discuss the (myth) of safe harbor with general counsel, to see if you can use OES directly, or alternate sources.
Finally, be sure to revise and update DOL Public file processes and checklists to reflect new requirements
Helpful Links:
OES Online Wage Library
www.flcdatacenter.com/OesWizardStart.aspx
OES Prevailing Wage Guidance/Worksheetwww.foreignlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.p
df
iCERT portalwww.icert.doleta.gov/
NAFSA iCERT guidancewww.nafsa.org/regulatory_information.sec/the_icert_portal_
system
Questions?
Suzanne B. Seltzer
Kate Kalmykov
Klasko, Rulon, Stock & Seltzer, LLP
Tel: 212-796-8840
Email: [email protected]
Email: [email protected]
Robin Catmur
Director, Office of Visa & Immigration Services
Dartmouth College
Tel: (603) 646-3474
Email: [email protected]