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Joel Stewart on PERM Labor Certification

PERM: Spotlight on Prevailing Wage

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The US Department of Labor holds Stakeholder meetings 3-4 times per year to discuss technical issues with employers, bar associations, student advisors, unions, government agencies, and other interested groups.

At a recent meeting, questions were raised about prevailing wage determinations for job offers involving combinations of occupations. DOL always raises the prevailing wage level if a position requires the worker to perform sets of duties that are found in more than one occupation

Stakeholders explain that when a combination of job duties appears in a PERM application, and the wages for each of the jobs is different, DOL should look at the percentage of time spent in the job duties of each occupation, and if a larger percentage of time is spent in one (and a lesser percentage in the other), the correct wage is the one for the job in which the employee will spend the most time working. Currently, DOL automatically defaults to the higher wage, regardless of the percentage of time.

Reconsideration of prevailing wage determinations is also very muddled. DOL has a three step procedure:

First, DOL does not include uploads with extensive documentation in its initial determination because of time constraints, but if the determination seems unreasonable, employers can provide supplemental documentation to the officer.

Second, the employer can escalate the issue to the director of the National Processing Center to reconsider the determination. If this type of review does not produce a lower wage, the Center will at least provide a detailed explanation about the methodology used in the wage determination.

The third option is an appeal to the Board of Alien Labor Certification Appeals. The Board consists of administrative law judges who review the matter from a broad, legal perspective, but employers must expect considerable delays due to BALCAs heavy caseload.
One stakeholder asked if employers could simply file new prevailing wage requests rather than pursue three kinds of review and reconsideration. The employer is always free to do that -- however, there is a rule that if two prevailing wage requests are submitted for the same job offer, the higher of the two wages has to be used!

An interesting point made by DOL is that as very few prevailing wage determinations are appealed through any of the three steps, and, as a result, DOL does not have sufficient feedback to identify policies or procedures that need to be changed.

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