1. SUZANNE B. SELTZER KATE KALMYKOV KLASKO, RULON, STOCK & SELTZER, LLP ROBIN V. CATMUR DARTMOUTH COLLEGE Calculate, DON’T Speculate: Understanding the Four Levels of Prevailing Wage

2. 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

3. iCERT Portal Centralizes all DOL related processes Web-based user account for LCA, requests for PWD, and (eventually) PERM One stop shopping for DOL information on PERM, prevailing wages, related forms and FAQs Goal to improve accessibility for employer and attorney while maintaining security

4. 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?

5. New Concerns/Considerations Who is filing on behalf of your institution?  Internal, Multiple Offices  External, Different Law Firms Need for standardized job descriptions Challenging erroneous determinations Even more advanced planning for PERM Plan for more time overall to file, regardless of the process you choose…

6. 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)

7. What it Means…Why it is Important SOC-O*NET http://online.onetcenter.org/ Descriptor of duties, skills, knowledge for a given occupation Based on duties and skills required, O*NET occupation is assigned a ‘Job Zone’ Job Zone designation ‘ranks’ the complexity of the job

8. 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

9. 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: Ba kers; Pharmacy Aides; Receptionist Job Zone Three:  Normal: 1 to 2 years  Examples: Court Reporters; Dental Assistants

10. 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

11. 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

12. 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

13. What Are the Four Levels? Level 1: Entry/beginning level Degree & experience at or below range Level 2: Qualified/competent in basic tasks Degree or experience at low end of range Level 3: Experienced/exercise judgment Degree or experience at higher end of range AND supervisory requirements or special skills Level 4: Senior/management Degree & experience outside the range

14. Perform Your Own PWD Appendix B/C of Nov 2009 Policy Guidance STEP 1: List Job Offer Rqmts & O*Net Rqmts STEP 2: Compare Job Offer Experience with range Job Zone/SVP Range for O*NET code STEP 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

17. 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.

18. Online Wage Library

19. Financial Services Advisor Personal Financial Advisors 13-2052 BA Job Zone 4 Appendix D Code 5 0 2 to 4 yrs 0 BA BA 0 0 0 0 0 0 0 1 03/31/2010 Kate

20. How It Works: Example 2 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

21. Online Wage Library

22. Post-Doc Research Associate Material Scientist 19-2032 PhD or ABD Job Zone 5 Appendix D Code 5 (BA) 0 4 yrs + 0 PhD or ABD PhD/ABD not BA 0 (not 2) 0 0 0 0 0 0 1 (not 3) Per DOL Guidance entry level 03/31/2010 Robin

23. 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 …

24. Post-Doc vs. Prof?

25. How It Works: Example 3 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.

26. Online Wage Library

27. Data Analyst Statisticians 15-2041 MA + 4 yrs exp. Job Zone 5 Code 3 4 years Over 4 years 0 Masters0 Statistical Analysis in medical research setting Considered a special skill? If yes then 1 1 0 2 Masters Suzanne 03/31/2010 00

28. 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.

29. How It Works: Example 4 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.

30. Online Wage Library- Option 1

31. Online Wage Library- Option 2 What do you do when no level is set?

32. Online Wage Library- Option 3 What do you do when no level is set?

33. 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 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

34. Research and Development Engineer Chemical Engineers 17-2041 Ph.D. + 5 yrs exp Job Zone 4 Code 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!

35. 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

36. 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?

37. 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.

38. iCert- ETA 9141

39. 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.

40. 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”

41. iCert- ETA 9141 Practice Tip: PW Request should only list the primary job requirement. This section should match the ETA-9089

42. 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.

43. iCert- ETA 9141 Practice Tip: Don’t forget to list ALL worksites

44. Practical Realties of 9141 Processing times Level 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 completed Important Email Addresses:  Technical glitches: oflcportal@dol.govoflcportal@dol.gov  Issues after PWD submission or request for duplicate PWD flc.pwd@dol.gov flc.pwd@dol.gov

45. 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 Center NPWHC: 1341 G St Suite 201 Washington, D.C. 20005-3105

46. Challenging a PWD

47. 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

48. Institutional Policy Concerns Determine the best process for your institution and office (NPWHD, OES direct, private survey) Again, centralized job descriptions are essential Allow 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

49. 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

50. Helpful Links: OES Online Wage Library www.flcdatacenter.com/OesWizardStart.aspx OES Prevailing Wage Guidance/Worksheet www.foreignlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.p df iCERT portal www.icert.doleta.gov/ NAFSA iCERT guidance www.nafsa.org/regulatory_information.sec/the_icert_portal_ system

51. Questions? Suzanne B. Seltzer Kate Kalmykov Klasko, Rulon, Stock & Seltzer, LLP Tel: 212-796-8840 Email: sseltzer@klaskolaw.comsseltzer@klaskolaw.com Email: kkalmykov@klaskolaw.comkkalmykov@klaskolaw.com Robin Catmur Director, Office of Visa & Immigration Services Dartmouth College Tel: (603) 646-3474 Email: Robin.v.catmur@dartmouth.eduRobin.v.catmur@dartmouth.edu