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Joel Stewart on PERM Labor Certification

PERM Prevailing Wage Question

Rating: 3 votes, 5.00 average.

I went to the AILA Conference in DC with numerous questions on my mind, and came back with many useful answers, but one question persisted:


How to prepare a prevailing wage request for a job offer with alternate requirements on a form that only allows one set of requirements for the occupation?


The prevailing wage determination could vary, depending if a position like Market Research Analyst would have as its requirement "Master's Degree" or "Bachelor's plus Five".  If the wage were calculated using the Master's Degree, it might come out to be one wage, or if calculated using the Bachelor's plus five, it might come out to be a different wage.


The DOL informed several years ago, that when placing a job offer with the SWA, it is only necessary to put the primary requirements, not the alternate requirements.


But now we are filing prevailing wage requests on a federal form which has only one slot for the job requirements.


What to do?


I attended the PERM lectures at the AILA conference, but did not find a definitive answer. One speaker stated parenthetically that both sets of requirements could be placed on the form. However, after reviewing the form carefully, I could not see how this would be possible.


I decided to check with my colleague Steve Clark,  who called my attention to a recent DOL liaison meeting from March 2010, where it was stated that when requesting a prevailing wage calculation, it would only be necessary to place the primary requirements on the form.


We need to remember, however, that the alternate requirements, and wage range options, need to be dealt with on the Notice of Filing, Form 9089, 30-day Job Order, and even in the advertisements (if the employer elect to place this information in the ads).


In the above example, of course, the Bachelor's plus five exceeds SVP, because the O*Net only allows 4 years of SVP, while a Bachelor's plus five amounts to 7 years of SVP.


The Master's Degree arguably might exceed normal requirements for the position of Market Research, not SVP, because the O*Net does not state that a Master's Degree is normal for the position of Market Research Analyst in the U.S.


Finally, unusual combinations of experience, education and training might violate the Kellogg rule which prohibits inappropriate alternate requirements.


Somewhat enigmatic is the fact that the PERM Form 9089 equires the Employer to state whether its requirements are "normal" in the U.S.  The DOL insists that the proper standard to determine "normal" is the O*Net, yet the O*Net is officially and lamentably inadequate and inaccurate. The DOL itself has acknowledged that by reducing approximately 10,000 jobs in the DOT to 1,000 jobs, the O*Net has resulted in inaccuracies or "anomalies."


Excessive requirements may result in audits, and audits add unusual delays (2.5 years or more!) to the PERM process.


Since there is no bright line solution for these questions, attorneys and employers have to take all the above factors into consideration in each and every PERM case!


 

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Comments

  1. Megan's Avatar
    We have been listing alternate requirements on the ETA 9141 in the D.a.5 section. We list the job duties, then we write, for example ***PRIMARY REQUIREMENTS: Masters Degree in X plus 2 years experience in X*** ***ALTERNATE REQUIREMENTS: Bachelor's Degree in X plus 5 years experience in Y***

    For one determination we got back, the DOL blended the wage levels, for another, we just got the level of the primary requirement. We'll see how things go as we move forward.
  2. Jack's Avatar
    If you list both requirements of a master's or a bachelor's plus experience, would the future petition qualify as an EB2?
  3. Bob's Avatar
    Importantly, if a 9141 lists a Master's degree plus 3 years of experience, often the determination will be level 2 or level 3 for an ONET job zone 4 position; whereas if the 9141 lists a Bachelor's degree plus 5 years of experience, the determination will always be level 4. So there is a bit of p-wage level arbitrage available if the employer has alternative requirements and the lawyer lists the Master's + 3, versus Bachelor's + 5.
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