Law Offices of Rajiv S. Khanna, P.C.
5225 Wilson Blvd
Arlington, VA 22205 USA Ph: (703) 908-4800
Arlington, VA 22205 USA Ph: (703) 908-4800
6 Byers Street
Staunton, VA 24401 USA Ph: (540) 886-6321
Staunton, VA 24401 USA Ph: (540) 886-6321
Prevailing Wage and FIFO (First-in, first-out order)
All wage requests are being processed in less than 60 days. First-in, first-out order (FIFO) is being used. Requests for H-1B/PERM are processed in FIFO order as there is only one queue. The goal in the end is to process all wage requests continues to be 60 days.
For guidance and guidelines for processing please visit this link.
DOL should be contacted in case when an agent or an employer has submitted a survey to DOL with or subsequent to submission of its prevailing wage request and there is no explanation given by the DOL for the reason of rejection of the survey. It is a procedure for DOL to give a reason as to why an employer- provided survey was rejected.
It helps DOL to match the survey to the pending request by indicating in the job duties section of the ETA 9141 that an alternate wage source (e.g. survey, SCA, CBA) is being used. After which the supporting data to DOL with the 9141 case number can be submitted.
Email flc [dot] pwd [at] dol [dot] gov if an alternate wage source was referenced on the 9141, and the wage determination with the subject line:
“Correction: Wage Source P-xxx-xxxxx-xxxxxx”, asking DOL to and ask DOL to review the previously submitted survey. Also mention to accept it or give a reason why it is not acceptable.
Note: Whenever a wage source is not accepted by DOL an explanation is received.
For more information please check this link.
Occupations with no set job zone and no set education
The analysts should do an additional research for situations for the above mentioned issue. According to the center analyst will go up the major group that OES code is under if in job zone is established for a specific OES code. They also look to see what the job zones for similar occupations are in the major group.
Usually the analyst will slot the occupation under an appropriate job zone. On the other hand for occupations with no set educational level the DOL analyst will look at the details tab in the O*Net Education section for typical educational levels for persons in the occupation to determine what is the normal range.
DOL also added that certain emerging occupations can be a problem. The reason being that it may exist in O*Net, but no OES wage data has yet been published for the occupation. Hence DOL will have to look for other jobs to prove the OES wage to assign.
Codes used in a PWD
Based on the job duties provided in the prevailing wage request wage analysts try to assign most specific code possible. Usually the general SOC codes are not used by the analysts. If a more specific code cannot be identified analyst will only use all other code.
Completing the ETA 9035
One has to indicate “Federal Minimum Wage” or, e.g., “California Minimum Wage” on the ETA 9035 if the Federal, State, or Local “minimum wage rate” is higher than the OES wage. It is quite possible for DOL to accept this as the prevailing wage source.
On the other hand if ETA 9035 is rejected because the minimum wage rate is not recognized then this is an error and should be put forth to DOL’s attention.
Redeterminations, corrections and technical problems
Redeterminations are requests for substantive changes to the DOL issued wage
determinations. An example could be a request to change in level (i.e., level 2 instead of 3), to suggest a different OES code. Based on the information already available DOL makes the redetermination. Under the redetermination queue employers may submit a new wage survey as per regulations. DOL will treat this as a new request when the employer submits an alternate wage survey. Hence DOL advises submitting requests to use an alternate survey as a new wage request, rather than as a redetermination.
As and when they are received redeterminations are processed in FIFO order. Use the iCERT redetermination request system, not hard copy if possible. This processing time is declining like other PW requests.
DOL error corrections should be submitted to DOL through the flc [dot] pwd [at] dol [dot] gov email. DOL advises not to use the redetermination button in iCERT for corrections on PWDS Examples of corrections appropriate for this email box: DOL checks level 2 wage box, but writes level 4 amount for wage; DOL does not explain why a submitted survey or wage source is not acceptable; DOL assigns wage from wrong county; DOL does not use ACWIA wage for ACWIA employer.
Note: DOL will only correct its own errors, not requestor errors.
Some of the examples of requestor errors are: Employer receives wage, realizes experience was omitted from request – DOL on the other hand will not issue a corrected determination to add the experience. To correct employer’s errors on the wage request form users must submit a new request.
Note: Requests for the wage to be reissued that is to extend the validity will NOT be granted except if it is an error by DOL. That is valid for less than 90 days.
To contact DOL for computer related technical problems use the following email address: oflc [dot] portal [at] dol [dot] gov.
PWD obtained for an H-1B case can be used for a PERM case, as long as it remains valid
PWD obtained for an H-1B case can be used for a PERM case and vice versa, as long as the determination remains valid and relates to the same job opportunity.
Discrepancy in time frames for PERM case adjudication
DOL advises all stakeholders to refer the iCERT reported times. Employers or agents may send an inquiry to DOL for case status if the filed date (priority date) is earlier than 90 days prior to the reported processing time (Analyst Review/Audit/Appeal). Sometimes cases take longer to review than others. As per DOL , the center is more worried about “stragglers” which are behind processing times, and not cases that are ahead of the reported times.
DOL and SWA error
DOL will reverse denials through government error (i.e., case denied because wage valid for 89 days or 366 days if a SWA error can be show. DOL on the other hand is not reversing SWA error denials on its own. Hence members must submit timely request for review.
ETA 9089 and requirements in the advertisement
According to DOL if there is a nexus between the job on the ETA 9089 and in the ad is shown, a general ad is acceptable. Requirements in the ad should not have a deterrent effect on applicants.
Special handling cases
A teaching position is determined by the job duties and not the nature of the employer or the job title. To cite an example would be of a doctor in a teaching hospital who will not automatically qualify for special handling unless his/her duties incorporated specific teaching duties (DOL seemed to imply that this would be stronger if it was a teaching hospital.). For purposes of special handling eligibility a person who designs training plans or courses, but does not conduct the actual courses would not be considered a “teacher”.
Note: Coaches usually do not qualify as teachers for special handling. But on the other hand internet and online teachers may qualify for special handling.
Pending PERM cases and Supervised Recruitment
Of the pending PERM cases approximately 1,000 cases are currently in the supervised recruitment (SR) unit. While a case is pending a PERM application can be converted to SR at any time prior to certification being issued.
Screening of resumes
All resumes are photocopied and forwarded to the employer or attorney of record. DOL does not screen resumes.
Supervised Recruitment (SR) application and receipt
When a designated SR application is received a paper or email receipt is not provided by DOL. On the other hand members can email the SR helpdesk at SR [dot] processing [at] dol [dot] gov to obtain a case number for a directed SR case after filing.
Case status and SR (Supervised Recruitment)
According to DOL if a case does not show up in the online account one has to email the SR helpdesk. A receipt number will be provided.
In this example of LCA denial - when LCA is submitted, then denied a week later because "NPC" is inadvertently left out of "Agency" block and LCA is resubmitted same day and denied 8 days thereafter because the PW Tracking # was invalid.
(Initial PW tracking number was entered on LCA in anticipation of determination being issued; when issued, the tracking number changed from 000 to 200.) The person submitting the LCA created the problem on the second LCA filing when they included an erroneous PW Tracking number. As this should not be happening DOL should be contacted.