suzanne b. seltzer

SUZANNE B. SELTZERKATE KALMYKOV

KLASKO, RULON, STOCK & SELTZER, LLP

ROBIN V. CATMURDARTMOUTH COLLEGE

Calculate, DON’T Speculate:

Understanding theFour 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 processesWeb-based user account for LCA, requests for

PWD, and (eventually) PERMOne 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 descriptionsChallenging erroneous determinationsEven more advanced planning for PERMPlan 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 years Examples: 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 levelDegree & experience at or below rangeLevel 2: Qualified/competent in basic tasksDegree or experience at low end of rangeLevel 3: Experienced/exercise judgmentDegree or experience at higher end of range

AND supervisory requirements or special skillsLevel 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 RqmtsSTEP 2: Compare Job Offer Experience with

range Job Zone/SVP Range for O*NET codeSTEP 3: Compare Job Offer Educational

Requirements 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, NJ Work 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.

Online Wage Library

Financial Services Advisor

Personal Financial Advisors13-2052

BA Job Zone 4

Appendix D

Code 50 2 to

4 yrs0

BA BA 0

0 0 0

0 0 0

1

03/31/2010

Kate


Post-Doctoral Research Associate in Boston, MA Plan 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

Online Wage Library

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 BA0 (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 2 DOL 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 …

Post-Doc vs. Prof?


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.

Online Wage Library

Data Analyst

Statisticians

15-2041

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 1

1

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.


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.

Online Wage Library- Option 1


What do you do when no level is set?

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 EngineerChemical 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

Robin

03/31/2010

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 survey

Appendix 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

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.

iCert- ETA 9141

Practice Tip: Don’t forget to list ALL worksites

Practical Realties of 9141

Processing timesLevel 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 completedImportant 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 CenterNPWHC: 1341 G St Suite 201 Washington,

D.C. 20005-3105

Challenging a PWD

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 essentialAllow 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 Librarywww.flcdatacenter.com/OesWizardStart.aspxOES Prevailing Wage Guidance/Worksheetwww.foreignlaborcert.doleta.gov/pdf/

Policy_Nonag_Progs.pdfiCERT portalwww.icert.doleta.gov/NAFSA iCERT guidancewww.nafsa.org/regulatory_information.sec/

the_icert_portal_system

Questions?

Suzanne B. SeltzerKate KalmykovKlasko, Rulon, Stock & Seltzer, LLPTel: 212-796-8840Email: [email protected] Email: [email protected]

Robin CatmurDirector, Office of Visa & Immigration

ServicesDartmouth CollegeTel: (603) 646-3474Email: [email protected]

suzanne b. seltzer

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