The following questions and answers were added to the Department of Labor's Office of Foreign Labor Certification (OFLC) FAQ page on March 15, 2011.
|DOL FAQs added March 15, 2011|
|How can I check the status of a prevailing wage application I filed using the iCERT System?
You can check the status of your case through your iCERT System account at http://icert.doleta.gov.
I submitted a prevailing wage request via the iCERT System. Should I also mail a copy of the ETA 9141 to the NPWC?
No. Please submit only one ETA 9141 per prevailing wage request. In order to reduce the number of duplicate PWDs, employers must not mail copies of ETA 9141s that were submitted via the iCERT System. In addition, employers should not submit multiple requests, via the iCERT System or mail, for the same PWD request.
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:
Why did the PWD I received have a different SOC than the one I suggested on the ETA 9141 item D.a.2. and 2a.?
The NPWC assigns a SOC based on a review of the job duties (item D.a.6.) and special requirements (item D.b.5.) listed on the ETA 9141. In addition, we may consider other items on the ETA 9141 such as the education requirements (D.b.1-1b.) or employment experience (D.b.4-4b).
I included multiple worksites on the ETA Form 9141 and I received wages for all of the worksites. Is the wage listed on page 4 of the ETA Form 9141 (Item E.4) the required prevailing wage?
The wage entered on page 4 of the ETA Form 9141 corresponds to the worksite location listed in D.c.1 to 6. The NPWC must provide wages for each location listed in the application. However, the NPWC does not dictate how the employer should use those wages to comply with the applicable program regulations and guidance. The employer, therefore, must ensure that it offers a wage that complies with the appropriate regulation and program specific guidance.
Does a prevailing wage determination expire?
Yes. Each prevailing wage determination issued by the NPWC has a validity period which can range from no less than 90 days to one year. The validity period of a PWD is the period between the determination date and the expiration date, as listed in Items E.8 and E.9 of the approved Application for Prevailing Wage Determination (ETA Form 9141).
How do I request that the NPWC use a Higher Education American Competitiveness and Workforce Improvement Act (ACWIA) wage in determining the prevailing wage?
ACWIA wages provide a prevailing wage based on a sample of similar institutions apply to occupations in institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. On the ETA Form 9141 item D.a.6 (Job Duties), after the description of job duties, include the following statement surrounded by asterisks: "***This employer is an institution of higher education or a research entity under 20 CFR 656.40(e). ***"
I am an institution covered by ACWIA, but there is no ACWIA wage for the suggested SOC I want to use. How will the NPWC apply an ACWIA wage?
The NPWC must issue an ACWIA wage for all institutions covered by ACWIA. When a SOC is assigned to an occupation that does not have an ACWIA wage, the NPWC will use wages for the closest occupation where an ACWIA Higher Education wage is available. The NPWC will enter an explanation of the assigned wage into the Additional Notes section of the PWD.
I submitted a survey with a request for a prevailing wage determination, but the determination I received had an OES wage? Why was the survey not used?
When the NPWC does not accept a survey, the NPWC includes an explanation in the Additional Notes section of the ETA Form 9141 as to why the survey does not meet the requirements. If the requestor did not include a notation on the ETA Form 9141 requesting the use of survey, the PWD may have been processed prior to the survey being matched with the record. If the survey was referenced on the ETA Form 9141 and the PWD did not include an explanation for non-acceptance, send an email to [email protected] with the subject line: Request for Review of Survey: Wage Source P-xxx-xxxxx-xxxxxx.
To ensure that the NPWC matches the submitted surveys with the appropriate PWD request, requestors must clearly indicate in the job duties section of the ETA Form 9141 the request for an alternative wage source. For prevailing wage determination requests submitted via the iCERT system, employers must submit the supporting wage documentation to the NPWC along with the iCERT case number. The NPWC will accept copies of surveys by email at [email protected].
I submitted a 9141 using iCERT and requested the use of a survey. If I mail in a survey, should I also include a copy of the 9141?
No. Include a cover letter that includes reference to the iCERT prevailing wage case number. The NPWC will accept copies of surveys by email at [email protected]. Please reference the prevailing wage case number in the email along with the survey.
Can the employer provide a survey with a redetermination request after the NPWC has issued a prevailing wage determination?
No. If the employer seeks to utilize a wage survey, the employer must submit the survey with the original prevailing wage request. The NPWC will reject redetermination requests to consider surveys that were not submitted with the original prevailing wage and the NPWC will require the employer to submit a new prevailing wage determination request with the wage survey included.
I see a new SOC user guide was issued by BLS in February 2010 and that it contains some new occupations. How are PWDs for these new occupations affected by this guide?
BLS conducts wage surveys once a year using current SOCs. Therefore, BLS may release wage information for new occupations in their July 2011 data release. Questions regarding when the new SOC will be implemented by BLS should be directed to BLS. In the meantime, the NPWC will issue PWDs using the closest SOC for which data is available.
I suggested an "All Other" SOC on the PWD request I submitted, but the determination I received had a different SOC? When are "All Other" SOCs used?
The NPWC assigns the most applicable SOC based on the job duties provided in the prevailing wage request. The NPWC only uses "All Other" SOCs (e.g., Biologists, All Other) when it cannot identify a more specific SOC.
Are all Postdoctoral Fellow positions considered entry level?
No. The NPWC considers a Postdoctoral Fellow position as entry level unless the position requires significant experience. If the employer requires significant experience and/or training for a Postdoctoral Fellow position, the NPWC may issue a wage higher than a level one. Additionally, if the position requires supervising other postdoctoral fellows or has other significant special requirements or duties, the wage issued may be higher than a level one.
How can I contact the National Prevailing Wage Center (NPWC)?
You may contact the NPWC by sending an e-mail to [email protected]. You may also contact the NPWC by phone at (202) 693-8200 between the hours of 8:00 a.m. and 5:00 p.m., Eastern Time. However, the phone representative only provides basic information and will direct most inquirers to send their inquiries to the NPWC's mailing address and the NPWC's e-mail box at [email protected].
To whom will the NPWC provide information regarding a submitted prevailing wage request? If I have a question or issue regarding a submitted request for a prevailing wage determination, can I or my representative receive information from the NPWC?
The NPWC will only provide application specific information to individuals named as the Requestor Point-of-Contact on the ETA Form 9141, Section B. The NPWC cannot provide information to persons not named as the point-of-contact.
I am having technical problems completing my application in iCERT. Whom should I contact?
If you are experiencing technical problems with iCERT, please contact the OFLC iCERT helpdesk at [email protected].
I received a PWD from the NPWC, but then realized I wanted to change or correct some information I had originally submitted on the 9141. Whom do I contact at the NPWC to make the changes?
All PWDs issued by the NPWC are final. The only exception is when the PWD contains an inaccuracy caused by the NPWC. If the employer wants a PWD with different entries, the employer must submit a new request.
How can I request a correction to a prevailing wage determination?
An employer who receives a PWD that contains one or more government generated errors (i.e., that are not the result of preparer errors on the ETA Form 9141), must request a correction of the PWD by sending an email to [email protected]. The subject line should read: Request for Correction: P-xxx-xxxxx-xxxxxx. Examples where an employer may request a correction include, but are not limited to, the following: a mismatch between the wage level and the wage amount; an incorrect validity period; or a non-American Competitiveness and Workforce Improvement Act (ACWIA) wage for an ACWIA institution. Please note: employers must not use the correction process to request a redetermination of an NPWC-issued PWD.
I disagree with the PWD. How can I request a redetermination?
An employer may request a redetermination by filing supplemental information as provided under 20 CFR 655.10(g) and 656.40(h). If the employer submitted the original prevailing wage request via iCERT, the employer should use the redetermination request option in iCERT to submit the redetermination request within 30 days from the date of the prevailing wage determination and provide any supplemental information via email to [email protected]. For prevailing wage requests originally submitted via mail, the employer must send their request for redetermination and supplemental information within 30 days from the date of the prevailing wage determination to the following address:
U.S. Department of Labor
When should I use the redetermination request option in the iCERT system?
In iCERT, employers must use the redetermination request option for redeterminations of the prevailing wage issued by the NPWC. Employers must not use it for iCERT issues or other questions. For questions or issues regarding a PWD, including corrections, please email the NPWC at [email protected]. For issues with the iCERT system, please send an email to [email protected]
How will submitting a redetermination request impact the validity period of my existing prevailing wage determination?
If the NPWC affirms the employer's redetermination request, the prevailing wage validity period remains the same. If the employer's redetermination request is modified, the NPWC will update the prevailing wage validity period to reflect the redetermination decision date. If the employer requests a redetermination based on a PWD issued before the release of new OES wage data that is available at the time of the redetermination, the NPWC will use the new OES wage data and establish a new validity period.
Can the employer provide a survey after the NPWC has issued a prevailing wage determination with a redetermination request?
No. If the employer seeks to utilize a wage survey, the employer must submit it with the original prevailing wage request. The NPWC will reject requests to consider surveys upon redetermination when the employer did not include a survey with its original wage request. Instead, the NPWC will require the employer to submit a new prevailing wage determination request with the wage survey included.
I disagree with the PWD redetermination issued. How can I file a request for Center Director Review/Challenge under the H-1B or PERM programs or a request for CO Review under the H-2B program?
For the H-1B and PERM programs, employers must submit requests for Center Director Review/Challenge in writing no more than 30 days after determination. Employers must send their requests for Center Director Review/Challenge to the following address:
U.S. Department of Labor
For the H-2B program, employers must submit requests for CO Review in writing no more than 10 days after determination. Employers must send their requests for CO Review to the following address:
U.S. Department of Labor
I disagree with the final CO Review, Director Challenge or Director Review. How can I file an appeal with BALCA?
For all programs, employers must submit requests for review by the Board of Alien Labor Certification Appeals (BALCA) in writing no more than 30 days after determination. Employers must send their requests for BALCA review to the following address:
U.S. Department of Labor
Can I submit additional information on appeal?
No. Appellate review is completed based solely on the record up to the date of the final CO determination. Only the information that was submitted under § 655.10(g) or 656.40(h) will be included in the appeal file.
I submitted a PW request using iCERT, but now I want to withdraw the request. Whom do I contact at the NPWC to request a withdrawal?
Employers/attorneys can withdraw a case themselves using the Withdrawal feature in their iCERT account.
How does the NPWC calculate the prevailing wage for nonagricultural (permanent, H-2B, H-1B, H-1B1, E-3) positions in the Commonwealth of the Northern Mariana Islands?
The NPWC follows the appropriate program's regulations with respect to determining prevailing wages in CNMI. As with all prevailing wage determinations, if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms-length between the bargaining representative and the employer, the wage rate will be set by the agreement. If the job opportunity is not covered by a CBA, the employer may provide a survey that complies with the regulations for the specific visa classification at: 20 CFR 655.10(f) (for H-2B positions), 655.731(2)(A) (for H-1B, H-1B1, E-3 positions), or 656.40(g) (for H-1B, H-1B1, E-3 or permanent positions). If the job opportunity is not covered by a CBA and the employer does not provide a survey or provides one that does not meet regulatory standards, the employer may request that the NPWC use a prevailing wage determined under the Davis Bacon Act (DBA) or the Service Contract Act (SCA), as appropriate. See http://www.wdol.gov/. If none of these sources provide a CNMI wage for the occupation listed by the employer or for an occupation requiring a substantially similar level of skills within the CNMI area of intended employment, then the NPWC will use the Occupational Employment Statistics (OES) wages of similarly employed workers having substantially comparable jobs with employers outside of the area of intended employment. The Department has determined that Guam is the most similar area of intended employment where OES wages are available, due to its close physical and economic proximity to the CNMI. Accordingly, for prevailing wage determinations based on the OES survey, Guam OES wages are used to determine prevailing wages in the CNMI.
The questions on the 9141 do not match the questions on the 9089 PERM form. Can OFLC revise the 9141?
No. The 9141 form is used to provide prevailing wage determinations for multiple OFLC programs. Some fields may not apply to all programs.