Office of Foreign Labor Certification Releases New Rounds of FAQs

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ETA 9141 FORM QUESTIONS

Are there any items on the ETA 9141 that requestors are routinely leaving incomplete and may cause a delay in processing or result in the request being voided?

Yes. As a general rule, requestors must complete all required items on the ETA 9141. Although entries may vary based on the visa classification supported by the application, there are items on the ETA 9141 that requestors are routinely leaving incomplete or incorrect. Such items include: Item D.a.6, job duties. In item D.a.6., the employer must provide a description that details the duties with enough specificity to issue a prevailing wage determination under a relevant Standard Occupational Code (SOC). To do this, the employer must specify the field(s) and/or product(s)/industry(ies) involved, any equipment the employee will use, and pertinent working conditions.
Items D.b.1-1b, education. In item D.b.1, mark only one U.S. diploma or degree as the employer's minimum requirement. If you choose "Other degree", indicate in item D.b.1a the specific U.S. diploma or degree (e.g., JD, MD, DDS, etc.). If the position requires a degree, in item D.b.1b indicate the major(s) and/or field(s) of study for the required degree.
Items D.b.4-4b, employment experience. If the employer checks 'No' to the experience question or leaves it blank, but indicates the number of months of experience required, we will consider that as a 'Yes'. In addition, if the job duties (item D.a.6) or the special requirements (item D.b.5) indicate that the position requires employment experience, the requestor must ensure it corresponds with the answers to items D.b.4-4b.
Items D.c.1-6, place of employment. "N/A" is not an acceptable answer for place of employment, and the ETA 9141 will be voided and returned to the requestor. The employer must provide the complete street address, city, county, and state for the location where the work will be performed.
Item D.c.3, the city of the place of employment. Enter the appropriate city for the worksite address. For Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, enter the city or town, as appropriate.
Item D.c.4, the county of the place of employment. Enter the appropriate county, not country (USA), for the worksite address. For Alaska, enter the appropriate borough or census area. For Louisiana, enter the appropriate parish. If the city is not part of any county, enter the city as the county.
The NPWC finds that Items D.c.7 and D.c.7a, which ask for information about multiple worksites, routinely cannot be used because they are too general. For instance, listing "the San Francisco area" is an inadequate response because the San Francisco area has nine counties. The employer must provide enough geographic detail about each area of intended employment to cover all known worksite locations by indicating each county (or independent city/town/township/borough/parish, as appropriate) and the corresponding state where the employee will work. However, the NPWC does not require employers to list the physical address for each worksite to receive a prevailing wage determination for that worksite. For the New England states, the county and the town are needed. If you are unsure about how to list the area, both the Online Wage Library (http://flcdatacenter.com/) and iCert wage lookup section list the geographic areas by the names used by the NPWC. The FLC Data Center (http://flcdatacenter.com/) has the geographic area data table from OES available in the Download Data Files section, while iCert provides the county or BLS area lookup. Below are examples of recommended forms of entries:

Alexandria City, VA
Frederick, VA
Trujillo Alto, PR
Fairfield (Sherman), CT
Fairbanks North Star, AK
Kenai Peninsula, AK
Caddo, LA

Revised February 6, 2013

 

Rather than entering the job duties in Item D.a.6 on the ETA Form 9141, can I just enter "see attached" and then upload job duties and/or requirements?
No. In order for information to be considered for a PWD, an employer must begin entering the answer on the ETA Form 9141 in the appropriate field, including the employer's job duties. The iCert portal allows for a total of 4,000 characters, or 15 lines, for the employer's job duties. When the employer enters more than the allotted characters or lines in Item D.a.6, iCert will automatically create an addendum page and insert "See Addendum" in Item D.a.6. The employer's entire job duties will then appear on the iCert Addendum page.

Job duties and/or requirements that are uploaded by the employer as separate attachments will not appear on the ETA Form 9141, and the application will be determined to be insufficient. If the insufficient application was mailed to ETA, it will be returned to the employer. If the insufficient application was filed electronically, it will be voided in iCert, and ETA will send an email notification to the employer.

Posted February 6, 2013

Rather than entering multiple worksite locations in Item D.c.7a on the ETA Form 9141, can I attach or upload a list of worksite locations?
No. For information to be considered for a PWD, an employer must begin entering the answer on the ETA Form 9141 in the appropriate field, including multiple worksite locations. The iCert portal allows for up to 200 locations to be entered in Item D.c.7a. The employer must provide enough geographic detail about each area of intended employment to cover all the known worksite locations. The NPWC does not require employers to list every worksite's physical address in order to receive a prevailing wage determination for that worksite. For multiple worksites, the employer must enter at least the appropriate counties (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work.

If the employer has more than 200 worksite locations for one job description, the employer must submit a second ETA Form 9141. The employer may use the "re-use" function in iCert to pre-populate the form and replace the multiple worksite locations with additional worksites.

Additional worksite locations that are uploaded by the employer as separate attachments will not appear on the ETA Form 9141 and will not be reviewed or provided wage determinations. If the employer does not list any of the worksite locations on the ETA Form 9141, the application will be deemed insufficient. If the insufficient application was mailed to the NPWC, it will be returned to the employer. If the insufficient application was submitted electronically, it will be voided in iCert and the NPWC will send an email notification to the employer. If the employer lists some additional worksite locations on the ETA Form 9141 but uploads a separate attachment for the remaining worksite locations, the NPWC will only provide wages for the worksite locations actually listed on the ETA Form 9141.

Posted February 6, 2013

 

MULTIPLE WORKSITES;

I have job openings for the same position in multiple locations. Can I request one PWD for the same job being performed in many locations?

Yes. The employer may submit one PWD request for the same job to be performed in multiple locations, up to 200 locations. The employer must indicate it is requesting PWDs for multiple locations on the ETA Form 9141 in item D.c.7 and list all of the locations in item D.c.7a. For more information on entering multiple locations in Item D.c.7a, see FAQ #5.
Posted February 6, 2013

 

ALTERNATIVE WAGE SOURCES:

Can an employer provide a survey, even if the employer's job description has restrictive or atypical requirements for the job opportunity, such as extensive travel?

The employer may provide a survey for use in the H-1B (H-1B1 and E-3), H-2B or PERM programs that meets the requirements in the Department's regulation 20 CFR §§655.731(b)(3)(iii)(B), 655.10(f), or 656.40(g), as applicable. The NPWC's acceptance of a survey is governed by the regulations and the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009) (PWD Policy Guidance), available at http://www.foreignlaborcert.doleta.gov/pdf/NPWHC_Guidance_Revised_11_200.... The survey's position description must generally match the job being offered and not have differences that would place the job into a different occupation. The job opportunity described on the application may not differ from the position described by the survey, such as requiring extra or unusual duties, skills, or conditions of employment. The survey must provide data for the most specific occupation available and cannot provide only data for summary or group occupations when data for the specific occupation is available. In addition, if the employer's job opportunity combines two or more positions in the survey and the survey documentation does not provide a method for the assignment of wages in such circumstances, the survey will not be accepted for that application. When the NPWC does not accept a survey, the NPWC includes an explanation on the ETA Form 9141 clarifying the reasons the survey does not meet the requirements.

To avoid rejection of a survey because it does not match a job description with restrictive or non-normal requirements, the employer should ensure that if the survey only has a single wage tier, the job description in the survey also contains the restrictive or non-normal requirement of the employer's job opportunity. A survey that does not contain the restrictive or non-normal requirement in the job description and provides only a single wage tier will be rejected. If the restrictive or atypical requirement is not included in the job description of the survey, the survey should have multi-tiered wages. In the case of a multi-tiered survey, the NPWC will use the same methodology currently used in determining wages in OES, and increase the wage level by one level for each restrictive or atypical requirement.

A wage determination issued by the NPWC for job duties, requirements, and conditions of employment for a particular job opportunity does not signify that those job duties, requirements, and conditions of employment have been found substantively appropriate to the occupation. Nor should the addition of wage levels be construed as a determination that a particular element of the job opportunity is or is not acceptable. The wage determination is not a determination as to the appropriateness of the requirements or conditions; it is an acknowledgement of the value of the requirements or conditions in terms of compensation. A wage determination does not replace the subsequent substantive evaluation of the appropriateness of those job duties and requirements for the purposes of labor certification or labor condition application process.

Posted February 6, 2013

 

COMBINATION OF OCCUPATIONS:

What does the NPWC use to determine appropriate skill sets for an occupation?
The NPWC uses the SOC description in O*NET to identify the skills normally associated with an occupation. Any required skills in addition to those listed in O*NET are considered atypical for the occupation and the analyst looks to see if they match another occupation. In either case, a point is added to the worksheet in Appendix C of the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009) that will raise the wage level by one level either because it contains a combination of occupations or because it contains job requirements not normal to the occupation.

The Occupational Outlook Handbook (OOH) is a DOL publication used by many to determine characteristics of occupations. It is often broad in its descriptions and may include many SOC codes within one general category. As such, when any contradiction between the O*NET information and the OOH occurs the O*NET information will take precedence.

Posted February 6, 2013

 

SPECIAL SKILLS;

How does the NPWC decide when to assign a "Special Skills and Other Requirements" point when determining the wage level?
When determining a wage level the NPWC uses the worksheet from Appendix C of the Prevailing Wage Determination Policy Guidance - Nonagricultural Immigration Program (Revised November 2009). Some of the elements considered for the "Special Skills and Other Requirements" assessment are discussed below.

The primary basis upon which the NPWC determines a wage level is the comparison of the employer's requirements and the typical requirements of the occupation at the entry level. Many employer requirements receive an additional point because they are considered to be special skills or other requirements. Some examples include professional or other certifications that are not required for entry into the occupation, frequency and extent of travel, job duties/skills representing a combination of occupations, and foreign language skills, each of which is discussed further below.

Certifications and licenses not required for entry into the occupation are assessed an additional point in wage level determinations. The level-one wage is focused on entry level workers, who do not typically require any kind of certification. Thus, where an employer requires a certification although certification is not normally required for the position, the NPWC will conclude that the position is not entry level. For instance, if the employer's position requires that it be filled by a Certified Public Accountant (CPA), the NPWC will not issue a level one wage for an accountant because the certification is not required to begin employment, and in many cases persons employed in the occupation never receive a CPA. Similarly, the NPWC will not issue a level one wage determination for a licensed engineer but will consider a level one wage for a non-licensed engineer who is working under the auspices of a licensed engineer. In contrast, all physicians must have a medical license for any physician occupations, entry level or otherwise, so the requirement of a medical license is considered typical for the occupation at any level.

A travel requirement can occasionally lead to an additional point for wage level determinations. Almost all occupations have some expectation of incidental travel associated with them. Incidental travel for training and development is considered normal for all occupations depending on the geographic scope of the travel. Typically, those in professional occupations attend these types of events nationally, but other occupations may be limited to local and regional events. Therefore, a point may be added, depending on the occupation and the scope of the travel. In addition, some occupations have travel outside of training and development in performance of the job duties. However, extensive travel outside the local area is not normal to most occupations and a point is almost always added in such circumstances. For instance, a house painter typically travels to various buildings in the same city, but if he or she is required to travel nationally to perform the job, an additional point will be added to the wage determination. Similarly, a sales manager typically travels to various offices in the region in order to provide oversight and monitor performance, but more extensive travel may be considered atypical. Also considered atypical is a physician who travels to various cities in the state on a rotational basis to provide services.

A combination of occupations, where the tasks and skills listed in the job description are outside the norm of a single occupation and instead are appropriate to a different occupation, may result in an additional point added to the worksheet. It is reasonable for a U.S. worker to expect additional compensation for skills that are outside the skill set required for his or her job. While there are common skill sets that may be applied to more than one occupation, the NPWC considers the job duties, the employer's requirements, and conditions of employment when determining the occupation and assessing wage levels. If the NPC finds a combination of occupations, it will add an additional point to the worksheet and assign the SOC code for the occupation that has the higher wage.

Foreign language requirements also may result in a one-level increase in the wage. By its very nature, communicating in more than one language makes a job more complex, except in the few occupations in which it is inherent to the occupation, such as a foreign language teacher or a translator. Any requirement for proficiency in a foreign language is assessed a special skill point for each foreign language required by the employer. The exceptions are foreign language teachers, interpreters, translators, and caption writers (a specialized translator), in which the nature of the occupations include knowledge of the foreign language and have, therefore, been factored into the wage.

Specialization in teaching a foreign language is recognized in the occupation description for the OES occupations 25-1124.00 - Foreign Language and Literature Teachers, Postsecondary; 25-2022.00 - Middle School Teachers, Except Special and Career/Technical Education; and 25-2031.00 - Secondary School Teachers, Except Special and Career/Technical Education. Thus, the wages for these occupations include the language skill.

The additional skills and requirements listed above are the most common instances in which the NPWC adds a point in the "Special Skills and Other Requirements" section of the worksheet. The list is not exhaustive and is presented for illustrative purposes only. Other skills and requirements may be found to be atypical in a specific application. Finally, a wage determination issued by the NPWC for job duties, requirements, and conditions of employment for a particular job opportunity does not signify that those terms and conditions will satisfy review at later stages in the labor certification or labor condition application process. Nor is the addition of wage levels to be construed as a judgment that a particular element of the job opportunity is or is not acceptable for purposes of adjudicating the subsequent labor certification.

Posted February 6, 2013

 

WITHDRAWALS

How can I withdraw a Redetermination Request or Center Director Review Request?

An employer/requestor may withdraw a PWD request at any point prior to the redetermination or issuance of the CDR by sending an e-mail to the NPWC Help Desk at FLC.PWD@dol.gov. The email subject line should include the ETA case number and the specific withdrawal requested. For example: To withdraw a redetermination request the subject line should read "[Case Number] Withdraw Redetermination."
To withdraw a Center Director Review Request the subject line should read "[Case Number] Withdraw CDR".

Posted February 6, 2013

How can I withdraw a BALCA Appeal Request?

An application docketed by BALCA must be withdrawn through the appropriate BALCA procedures. Those procedures can be found on the BALCA's website at http://www.oalj.dol.gov/LIBINA.HTM.
Posted February 6, 2013

 

H-2B PREVAILING WAGES;

What information should I include to get PWDs for the various locations under the H-2B special procedures for itineraries?

Employers are no longer required to submit their entire itineraries to the NPWC for a wage determination. The NPWC will only provide wages for the worksite locations listed on the ETA Form 9141. The iCert portal allows for a total of 200 locations to be entered in Item D.c.7a on ETA Form 9141. The employer must provide enough geographic detail to cover all the known worksite locations of intended employment. The NPWC does not require employers to input every worksite's physical address for the prevailing wage determination. For multiple worksites, the employer only needs to enter the appropriate counties (or independent city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding state(s) where the employee will work.

If the employer has more than 200 counties, or their equivalent, where the employee(s) will work in one occupation, the employer must submit a second ETA Form 9141. The employer may use the "re-use" function in iCert to pre-populate the form in order to submit the additional ETA Form 9141.

Additional worksite locations that are uploaded by the employer as separate attachments will not appear on the ETA Form 9141 and will not be reviewed or provided wage determinations. If the employer does not list any of the worksite locations on the ETA Form 9141, the application will be deemed insufficient. If the insufficient application was mailed in, it will be returned to the employer. If the insufficient application was filed electronically, it will be voided in iCert and an email notification will be sent to the employer. If the employer lists some worksite locations on the ETA Form 9141 but uploads a separate attachment for the remaining worksite locations, the NPWC will only provide wages for the worksite locations actually listed on the ETA Form 9141.

Revised February 6, 2013

Agency: 
Immigration Law :