questions raised by dol stakeholders for meeting ...prevailing wage determinations dol received...

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Questions Raised by DOL Stakeholders for Meeting September 28, 20121

Attendees: DOL OFLC: William Carlson, Elissa McGovern, Brian Pasternak, Bill Rabung, Bridget Keplinger AILA: Grace Hoppin, Kevin Miner, Deborah Notkin, Bennett Savitz, Atessa Chehrazi, Roger Tsai, William Stock, Betsy Lawrence, Rachel Pulda Other Attendees: NAFSA, ACIP, National Council of Agricultural Employers, ABA, DOL Wage & Hour, USCIS General Comments and Updates from DOL PERM Updated PERM statistics have recently been posted. Around 23,700 applications are currently pending. While the statistics show approximately 45% of pending cases are in the audit queue, this does not mean that there is an overall 45% audit rate. It is simply a function of the fact that audited cases take longer to process than non-audited cases. Audit cases are taking around 200 to 260 days. Non-audit cases are taking 60 to 90 days. Supervised recruitment cases are taking around 12 months. As noted below (Question #8), DOL expects these times will be reduced soon. Prevailing Wage Determinations DOL received around 132,700 prevailing wage requests in FY2012. This is a dramatic increase from prior years. All prevailing wage requests are being completed within the target processing time of 60 days. BLS is still transitioning 2010 SOC codes into the system and there are not yet wages with codes for every occupation. Labor Condition Applications LCA filing volume has increased significantly, with LCAs for around 880,000 positions filed in FY2012. Approximately 92% of LCAs are approved. The primary denial reason is FEIN verification. H-2A/H-2B DOL has launched its electronic filing system. Detailed information is available on the DOL website, and DOL is holding stakeholder webinars on the new system. The

1 The listed agenda is prepared by DOL from questions stakeholders submitted to DOL prior to the meeting. Not every question submitted by stakeholders appears on DOL’s agenda. These notes are not reviewed or approved by DOL.

AILA InfoNet Doc. No. 12102641. (Posted 10/26/12)

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approval rate for H-2Bs is around 84%, with temporary need and labor market test issues being the primary denial reasons. Questions and Answers LCAs 1. Proposed ETA 9035. The comment period for the proposed LCA ETA 9035

closed on September 7, 2012. How many comments did DOL receive? Will DOL provide a response to the comments? Does DOL expect to make changes to the proposed form before forwarding to OMB? What is the expected time frame for future actions taken on the proposed form? When can employers expect to see a new ETA 9035 in iCERT?

DOL Response: Many substantive comments to the proposed form were received. DOL is in the process of reviewing those comments. The next step in the process is to make any possible changes to the form and forward the form to OMB, as well as publishing an additional notice with a 30 day comment period. When OMB completes its review and any changes are finalized, DOL will then need to make iCERT system changes to accommodate the new form. This will be a time consuming process, and DOL is likely at least a year away from implementing any changes to the ETA 9035.

H-2A/H-2B 2. General. With regard to the new e-mail system in which employers or

agents/attorneys agree to accept e-mail correspondence with the CNPC, for what action items will DOL send an e-mail and what types of actions are reserved for overnight mail? For example, H-2A and H-2B stakeholders report receiving e-mails for receipts of initial filings as well as some, but not all, notices of deficiencies. Acceptance letters seem to arrive by UPS as do certifications without a corresponding e-mail.

DOL Response: The e-mail system is something of a pilot program, but DOL is receiving a good amount of positive feedback on the system. DOL finds it a useful way to quickly get application deficiencies corrected without the need to go through the appeal process. Once an employer/agent/attorney is in the e-mail system, all correspondence and communication is done via e-mail with the exception of sending original certifications. Those will continue to be sent via regular mail.

3. Please confirm that the Department’s receipt of an employer-signed recruitment

report by fax or e-mail is sufficient to meet a filing deadline and that an original signature is not required for continued processing of an H-2A application.

DOL Response: Yes, as long as the recruitment report is signed by the employer, it will be accepted by fax or e-mail. DOL is in the process of adding a document upload system so that this ultimately can be submitted electronically through the online system.


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4. Appeals. Regarding H-2A appeals, whether at the Notice of Deficiency stage of

the application process or after a denial, how long does it take for the CNPC to transfer the record on appeal to the Administrative Law Judge (ALJ)? 20 CFR section 655.171 requires the administrative file to be sent by overnight mail but a member reports that it has taken take up to a week from the date that the appeal was requested for the file to be transferred causing extreme delay in the expedited appeal process. Will an e-mailed request for an appeal suffice to initiate the transfer of the administrative file to the ALJ or is an original signature/request required? In a related issue, it appears that analysts continue to issue H-2A denials when their reason to deny an application has been overturned on appeal in a separate H-2A application. This results in duplicative appeals over fundamentally identical matters that have already been argued and found to be not applicable. (Example: the argument related to the Norman Industries case (verification of satisfactory employment references) – the same day that one case was overturned, 5 others were denied on exactly the same argument). Please explain how a decision on appeal is conveyed to the CNPC so that incorrect denials can be avoided.

DOL Response: Yes, an e-mail is both acceptable and helpful to start the administrative file transfer process. On the issue of communication of appeal decisions, a denial such as the one noted is an unusual circumstance, and is a function of the speed of the process rather than internal consistency on the same issue. Because of the speed of the process, DOL cannot stop cases already processed and moving out the door when there is a change in interpretation or a decision on a particular issue. DOL works to incorporate these changes as quickly as possible into the process, but sometimes cases are already going out the door before they can be caught. Incorrect denials should be quickly reopened, which is what happened with these cases.

5. Notices of Wage Adjustment. H-2A stakeholders report the receipt of Notices of Wage Adjustments containing hourly, daily, or monthly prevailing wage determinations that do not apply to its H-2A occupation. The wage adjustment notices state that “In order to comply with the H-2A program requirements, you must pay the new H-2A prevailing hourly or piece rate(s) to your workers beginning on (date specified), if applicable at the time the work is performed.” This language is confusing because; 1) the occupation listed in the wage adjustment is incorrect; and/or 2) the employer/association may not pay a piece rate; and/or 3) the employer/association may not pay, and is not required to pay, its workers hourly or daily, depending the prevailing wage listed. There is no method to challenge a wage adjustment notice and the issue comes up during a Wage & Hour audit. Is it possible for the CNPC to review the wage adjustment notices and ensure that the notices are sent solely to the employers/associations to which the new wage applies? (We appreciate the Ombudsman’s recent clarification of the inapplicability of the wage adjustment in the context of special procedure occupations, however, stakeholders are concerned that the notices are misleading in the other situations as described herein and may, in some instances, has the potential for workers being paid less than the required wage.)


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DOL Response: The phrase “if applicable” is intended to communicate that the wage adjustment won’t necessarily apply to every employee working for the employer, but only those performing the duties covered by the wage adjustment. The regulations require notification of wage adjustments, and for employers to make those wage adjustments once notice is received. DOL lacks the resources to be able to go individually through each application and provide a definitive statement to the employer as to specifically which employees will require a wage adjustment, which is why a broader notice is sent. DOL relies upon employers to be able to identify which of their employees are performing duties covered by the wage adjustment and which are not.

6. Audit Examinations by the CNPC.

A. In reference to the Notice of Audit Examinations being distributed by the CNPC, what is meant by requiring earnings records for “each worker employed?” Does this request include records for every single employee (secretaries, administrative personnel, etc.) or is this request limited to earnings records for workers in the occupation described in the applicable H-2A application? When the Department issues a Notice of Audit Findings declaring that the employer has been found in violation of the regulations what recourse does an employer have to address the findings with the Department? What percentage, if any, of these cases are investigated further by the Department of Labor? If the findings are sent to Wage and Hour, do they automatically trigger an investigation?

DOL Response: The phrase “each worker employed” means those workers engaged in the occupation described in the H-2A application. There is no recourse process for a Notice of Audit Findings for violations that are not substantive or major violations; only when there are violations that warrant debarment or revocation is there a recourse process. On the issue of investigations, DOL does not maintain statistics on what percentage of cases are investigated further by Wage and Hour, but DOL will share information with Wage and Hour in the event of an investigation. The most common reason for revocations and debarment is the failure of employers to pay the certification fee, which is typically around $110 to $200. A surprisingly high number of employers fail to pay this fee, despite repeated requests and warnings from DOL.

B. The Notice of Audit Examinations being distributed often requires the

employer to provide proof of ownership/control of the work sites. Please explain what type of documentation the Department is seeking in response to this request. For example, the Department stated in an RSI that the lease provided by an employer “does not provide adequate proof that the worksite locations are owned and/or controlled by the employer” and the employer is directed to provide a “proficient agreement being made by two parties with the rental property clearly listed.”


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DOL Response: There is not a specific document that is required. DOL is looking for an official document that demonstrates who controls the worksite and the workers. Note that the documents need to be signed and official; unsigned drafts are not sufficient.

7. Surety Bonds. H-2A LCs are required to obtain a surety bond to cover the season being applied for and the bond itself must remain in force for a period of no less than 2 years from the date on which the labor certification expires. The bonding companies have attempted to cancel the bond at the end of the season since the FLC is getting a new bond for the next application or season. The Department is apparently refusing to allow the cancellations of the bond even though it remains in force for the required two years. As a result, H-2A LCs are paying annual premiums for 3 years on a bond that covers a single application/season. We believe that the language in the bond itself along with an assurance by the employer that the bond remains in force for 2 years after the expiration date of the labor certification meets the requirements of the regulation. The surety’s cancellation of the bond has no bearing on the bond’s validity for the required period of time. The cancellation of the bond is strictly applicable to the payment of additional premiums. Please confirm that the Department will accept a cancellation of the bond under these circumstances.

The FAQs state that an original rider to a bond may not be sufficient to satisfy the bond requirement. However, original riders may indicate new effective and validity dates and simply incorporate the amount and terms of the original bond. We understand that this issue has been resolved on appeal and that original riders are sufficient for purposes of meeting the bond requirement. Does the Department plan to revise its FAQs with regard to the acceptance of original riders to a surety bond?

DOL Response: Cancellation of bonds is a Wage and Hour issue, so DOL ETA is unable to answer that question. DOL will typically accept a rider that is attached to an original surety bond consistent with the FAQ as this would effectively provide a surety bond for that application, but will not accept a rider attached to other documents.

PERM

Supervised Recruitment

8. Processing Times/Delays in SR. The processing of supervised recruitment cases

is still extremely slow. Cases filed directly into supervised recruitment in January and February 2012 have still not received the initial communication from DOL or any recruitment instructions. Based on reports, it appears that DOL is not following FIFO on SR cases, as there are SR cases with priority dates ranging from May 2011 to October 2011, and draft ads/ad corrections have been submitted as early as February 2012 and as late as July 2012. Please provide details on SR processing dates and times.


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In addition, could any of these pending SR cases be certified without undergoing supervised recruitment? DOL has previously stated that most cases in SR were placed there after an audit and that cases are only put into SR after audit if there was no basis for denial based upon the audit response. If an employer has already completed SR for several other cases, and had those cases certified, could the Certifying Officer exercise his discretion to waive the SR recruitment for other pending SR cases for the same employer? This would be a case-by-case determination, but for employers that may have a large number of pending SR cases, it would appear that the CO does have authority under the regulations to waive SR and certify based upon the initial recruitment and audit documentation. This would help to reduce the backlog of pending SR cases.

DOL Response: DOL expects to see a significant increase in the speed of processing of SR cases as well as cases under audit. Staff members who normally work on SR cases were temporarily reassigned to identify and process “straggler” cases. That project has been completed as of October 1, 2012, and DOL has moved those staff members back to their normal work. This should result in much faster processing of both SR and audit cases.

AILA Comment: DOL did not address the question of certification of cases currently in the SR queue without going through the SR process.

9. Consolidation of Identical Cases. Following up from the January and March

stakeholder meetings, DOL indicated that it would make sense to consolidate recruitment for SR cases that are identical. Has DOL made any progress on publishing a standard that can be followed to consolidate recruitment for SR?

DOL Response: DOL is preparing an FAQ regarding consolidation of SR cases. DOL is generally not opposed to consolidation of recruitment efforts in appropriate cases, and a request can be made to the SR processing e-mail box for consolidation. Even where cases are consolidated for recruitment, however, DOL will still require individual recruitment reports for each SR application.

10. Websites Required under Recruitment Instructions. In recent supervised

recruitment cases, DOL has required employers to place ads on many websites. These websites have included: www.dice.com, www.computerjobs.com, www.indeed.com, www.softwareengineer.com, www.itsalesprofessionals.com, www.itjobs.com, among others. Members have reported several issues with some of these websites, including: changes made to the advertisement after posting, including removing the DOL mailing address for applicants; the inclusion of a mandatory wage range field at the top of the listing (which has pre-set wage ranges); automated “reposting” of job advertisements, which gives the appearance that the listing has not been continuous; mandatory skills fields that have been edited by the website; and a “minimum immigration status” field that is mandatory. It is extremely difficult (and at times impossible) to post the advertisement as approved by the SR team on many of these websites. In many instances, the websites will edit the job postings after submission by the


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employer and without notice. For example, on www.dice.com, a job posting may be edited by the website and the only way the employer can tell it has been edited is that the “posting date” will change. This is problematic both because the text has changed and because it appears that the posting was done later. The website www.indeed.com holds some postings for revisions by a sales representative. As a result, the employer does not have control over the timing or the final text, two components that are essential for meeting DOL’s requirements. Many websites direct applicants to the employer’s email or website, ignoring the requirement in the ad text to send applications to the DOL address. Before the SR team directs the employer to use a website to place an advertisement, can DOL investigate to confirm that the website can post the advertisement as required? Can DOL also confirm that employers going through SR will be held harmless for any deficiencies in the required website recruitment that were beyond the employer’s control, such as mandatory wage fields that are preset with fixed wage ranges? Given the variations in practices of these websites and the lack of control that can be exercised by the employer, DOL should allow an employer to show substantial compliance with the request as sufficient to satisfy the supervised recruitment instructions. DOL Response: DOL’s goal in SR is to have the employer engage in a different approach to the labor market test than what was conducted in the pre-filing PERM recruitment. It is for this reason that DOL sometimes issues SR instructions that have extensive website recruitment – it is seeking to avoid a simple repeat of the earlier labor market test. DOL is not always aware of problems with particular websites. Issues with websites should be sent to the SR processing e-mail box. When providing notice to DOL of a problem with a website, substantial detail is very helpful, including screenshots where possible. DOL may or may not issue updated recruitment instructions, so employers should proceed with the recruitment process mandated by the existing recruitment instructions. The e-mail reports and documentation, however, may help to clarify any issues with the recruitment documentation. The key focus of DOL is whether the recruitment issues could have dissuaded U.S. workers from applying for the position. For example, if the recruitment instructions mandated a 30 day posting on a website and it is impossible to run the posting for more than 28 days, a denial on this basis is unlikely to occur.

11. Use of Monster.com for SR Cases. Several newspapers (Boston Globe, San Francisco Chronicle, Chicago Sun-Times, etc.) place their online ads on Monster.com. When the SR instructions direct the placement of an ad on these newspaper websites AND on Monster.com, this means placement of the same listing twice on the same website, which is redundant. Can DOL confirm that a single advertisement on Monster.com is sufficient when the required newspaper uses Monster.com to place job advertisements online?

DOL Response: DOL did not provide a specific answer to this question, but suggested e-mailing the SR e-mail address for clarification on particular recruitment instructions. Note, however, that the employer should still follow the recruitment instructions. As noted above, the focus is whether a full labor market test was


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conducted that provides U.S. workers with opportunity to apply for the position. DOL is not intentionally seeking duplicate ads.

12. Use of E-mail by SR Unit to Issue Recruitment Instructions. Recent recruitment instructions on SR cases have been coming by e-mail, and include a statement that all SR communications will now be by e-mail. We wish to raise our concerns about whether employers and/or attorneys will receive the e-mail and have proper notice to start recruitment during the limited 15 day window of opportunity.

There are many likely scenarios where the recruitment e-mail might not reach the appropriate parties in a timely fashion, or at all. For example, the HR contact who was listed on the PERM form when the case was filed may no longer be there – many of these cases were filed over a year ago, and people may have changed employers or jobs since that time. Similarly, the attorney of record may have changed firms since the PERM application was filed, and even if they updated DOL with this change, our experience is that DOL does not readily update the e-mail addresses when they are notified of changes. In contrast, when a notice is sent by mail, this can be readily directed to current counsel or the correct HR contact – e-mails sent to a no longer valid e-mail address cannot, as they may never be received or may not be reviewed in a timely manner.

Rather than sending the SR recruitment instructions only by e-mail, can the SR unit instead send the recruitment notice by mail, and give the attorney and employer the option to opt in to e-mail notification? Alternatively, if there is no response to the SR recruitment e-mail, can a written notice to start the recruitment be provided before the case is denied? By way of comparison, USCIS uses e-mail communication quite regularly, but also ensures that a hard copy of critical documents (such as a Request for Evidence) is sent by regular mail to ensure receipt by the appropriate parties. USCIS also specifically asks on forms if the petitioner agrees to notification via e-mail and/or fax; USCIS does not unilaterally choose to communicate via these electronic means.

While e-mail can be faster than regular mail, changing the means of communication from mail to e-mail with no advance notice, and with no confirmation of the e-mail addresses, raises concerns that some cases may be denied due to recruitment instructions not reaching the intended recipients. This will only lead to more work and wasted resources, both for the applicants and the Department, as we can expect Requests for Reconsideration to be filed on a regular basis if a communication is not received. Given the importance of predictability and consistent practices in the PERM process, an unannounced switch to e-mail communication with no mechanism to opt out of receiving communication via e-mail is going to catch many employers and attorneys by surprise, and may lead to improper denials.

DOL Response: DOL has had good success with e-mail communication in the H-2A context, and believes that it adds important efficiencies to the SR process. DOL intends to continue with its practice of communicating on SR cases via e-mail. DOL would not agree to any changes regarding communications via e-mail, and


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would not agree to sending correspondence by regular mail as a back-up. DOL will consider whether employers could “opt-out” of e-mail notice, but did not agree to this. Employers and attorneys can update contact information (e.g., when there is a change of employer contact, a change of attorney e-mail address, etc.) by sending an e-mail to the SR processing mailbox. DOL will look into whether it can send a response confirming that the system has been updated with new contact information. It is also permissible to request that DOL send e-mail communications to multiple e-mail addresses, such that more than one attorney at the same firm can receive e-mail communications on the same case, or by setting up a listserve email (e.g., [email protected]).

AILA Comment: Members with pending SR cases should be regularly following up with DOL via e-mail to confirm the status of the case, and whether recruitment instructions have been issued. Members should also confirm that the correct e-mail address(es) are on file with for each pending SR case, and that junk and spam filters are checked for correspondence from DOL. Should members receive a denial of an SR case based on an e-mail that was not timely received, please notify liaison at [email protected].

13. Questions Regarding Consequences of Withdrawing an Application Undergoing SR. In May 2012, DOL published the following FAQ1:

Q: What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment?

A: While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment.

20 CFR 656.21(a) states that “Where the Certifying Officer determines it appropriate, post-filing supervised recruitment may be required of the employer for the pending application or future applications pursuant to §656.20(b).” Requiring supervised recruitment for the “pending” application suggests that any such order would be limited to applications for the same job opportunity, not simply to the same employer and foreign worker.

In contrast, the FAQ states that “the [employer’s] future application for the same foreign worker as in the withdrawn application will be subject to supervised recruitment.” This suggests that any application by the same employer for the same foreign worker would be subject to supervised recruitment, regardless of whether the subsequent application is for the same job opportunity. For example, a foreign worker may transfer to a different role with the employer, or may transfer to a different geographic location in the same role with the same employer. As such applications would involve testing a different labor market, or testing for a


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different occupation, the Department has historically viewed non-identical applications by the same employer for the same foreign worker to be for “different” job opportunities. The FAQ’s implication that supervised recruitment will be required for different job opportunities than were described in the initial, withdrawn application is inconsistent with the Department’s long-standing practice.

In addition, the regulations appear to impose a limit of not more than two years for any order of supervised recruitment for the same application, as 656.20(b) states that employers may be required “to conduct supervised recruitment under §656.21 in future filings of labor certification applications for up to 2 years.” The FAQ does not clarify that an order to file under supervised recruitment would be limited to not more than two years. We would suggest the following revisions to the FAQ for clarification, and to better track the language of the regulation:

What are the consequences of an employer requesting to withdraw an application undergoing Supervised Recruitment?

While OFLC/ANPC may grant an employer's request to withdraw an application undergoing supervised recruitment and the employer then files a new application meeting all regulatory requirements, the future application for the same foreign worker and for the same job opportunity as in the withdrawn application will be subject to supervised recruitment pursuant to 20 CFR 656.21 for not more than two years. Additionally, where the OFLC/ANPC determines it appropriate, all other applications filed by the employer for any foreign worker or job opportunity may also be subject to supervised recruitment.

DOL Response: DOL will look into this and issue updated guidance, if appropriate.

14. Bona Fide Reasons for Withdrawal during SR. Employers may choose to

withdraw cases undergoing SR for many reasons, such as the employee terminating his employment, the employee obtaining a green card through other means (such as marriage), or the costs of the required recruitment. In determining any employer-wide consequences of withdrawal during the SR process, does DOL consider the explanation as to why the SR case is being withdrawn? How can an employer best provide an explanation why the SR case is being withdrawn?

DOL Response: DOL does not monitor or track particular reasons for withdrawal. DOL does, however, pay attention to the rate of withdrawal both for individual employers and overall. The withdrawal rate has decreased, but at one point was more than 10%. Such a high rate of withdrawal caused DOL concern. DOL does recognize, however, that there are legitimate reasons why an application might be withdrawn, and will review existing guidance and make changes if appropriate.


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Processing Issues

15. FAQ Requiring Inclusion of Both Primary and Alternative Requirements on the ETA 9141. With regards to the PWD FAQ that was published on June 21, 2012, which advised that the ETA 9141 should include both the primary and the alternative requirements, can you confirm that the implementation of this change is prospective in nature? In other words, if members requested a PWD on or before June 21, and the ETA 9141 only included the primary requirements, may the issued PWD still be used in support of a PERM form that includes both the primary requirements and alternative requirements? Members are concerned that if they submit a previously requested PWD in response to a PERM audit, and the PWD does not reflect the alternative requirements that are listed on the ETA 9089, the case may be denied based on the new FAQ guidance. At least one case has received such a denial since the FAQ was released (A-xxxxx-xxxxx).

DOL Response: This question was not addressed at the Stakeholder Meeting.

16. Duplicate PERM Certifications. Several members have reported receiving two certifications of the same PERM application, with different validity dates. In most (but not all) of these cases, when the case was first approved, no hard copy ETA 9089 was received by the attorney in the mail. When the case was “recertified,” a hard copy 9089 was generated. Has your office been able to identify what caused these duplicate approvals? Has your office also communicated this problem to USCIS, as this could impact processing of an I-140 petition that was filed with a request that USCIS contact DOL to obtain a “duplicate” certification?

DOL Response: This question was not addressed at the Stakeholder Meeting. Note, however, that AILA is aware of at least one case where the I-140 was approved by USCIS despite issuance of a “duplicate” certification with different dates. In that case, AILA liaison advised DOL and USCIS of the duplicate certification issue prior to the I-140 being approved.

17. PERM Online System – Can Status Field be Updated to Reflect Issuance of

an Audit? When the PERM program was launched in 2005, it initially included an online status of “audit” when an audit was issued. At present, status is shown as “in process” after filing until it is certified, denied, or withdrawn. If the audit status was returned to the online system, employers would know that an audit had been issued, and could promptly follow up with DOL in the event that they do not receive the audit notice. This also avoids DOL having to proceed with denying the case for non-response to the audit, and then having to process a request for reconsideration – the audit could be reissued and sent without delay.

DOL Response: This question was not addressed at the Stakeholder Meeting. 18. Customer Service – How to Escalate when E-mail Doesn’t Resolve a

Problem? Members often have difficulty getting a response from the various e-mail help desks ([email protected], [email protected], etc.) beyond a boilerplate acknowledgement of the inquiry. This lack of substantive response can be particularly challenging when an employer is trying to create a new


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PERM filing account, or if the employer’s contact is locked out of their online PERM account. Can you provide any details on how e-mail inquiries are handled by each of the help desks? Do they have required service response times? If yes, can you share this, so that we know when to follow up if a response is not received? Would it be possible for a dedicated e-mail to be created to follow-up on specific matters, such as PERM account registration problems? As an example, USCIS has a dedicated follow-up e-mail for service requests, but this e-mail can only be used after a service request is made, and after a set period of time goes by without a response. DOL Response: This question was not addressed at the Stakeholder Meeting. However, note the response to question #8 that DOL has completed its project to address “straggler” cases and has returned staff to normal job duties. This may help to improve timeliness of responses from DOL on these kinds of issues.

19. Infrequent Travel. Some positions may require the worker to travel infrequently

to attend conferences or meetings, but this travel is sporadic and rare. The core job duties do not require travel. Where the job duties do not include a regular travel requirement, but the employee may have to travel on occasion to attend meetings, conferences, or similar business-related events, please confirm that the employer can indicate no travel on the ETA 9141, and that the employer need not mention travel on the ETA 9089.


Audit Issues 20. High Audit Rate. Some employers seem to have a very high audit rate (80%+)

compared to the overall audit rate (approximately 30%), despite not having an unusually high denial rate or issues with PERM compliance. The high audit rates have continued for a long time for these employers. Why is DOL continuing to audit some employers at a significantly higher rate than others?


21. Audits about Telecommuting. Recently, DOL has begun to issue audits with

the following language: “The foreign worker listed on the ETA 9089 resides in [residence location], section H of the 9089 provides [work location] as the worksite. Please explain how the foreign worker performs the job duties of the job opportunity given the distance between [residence location] and [work location]. Is the employee permitted and/or expected to perform the duties of the job opportunity listed on ETA 9089 from his residence and/or his place of choosing?” In many cases, the two locations are quite close and are clearly within a normal commuting distance (e.g. Atlanta and Marietta, Georgia – distance approximately 20 miles; Palisades Park and Parsippany, New Jersey – distance approximately 30 miles). In one case, the work and residence locations were less than two miles apart. Would DOL consider conducting an initial review of the distance between the residence location and work location before issuing the audit?


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DOL Response: This kind of question on an audit where the work location and residence location are close together is likely a training issue. Examples of this kind of issue can be provided to AILA ([email protected]) so that they can be shared with DOL and addressed with the Atlanta National Processing Center. DOL does, however, believe that it is appropriate to inquire about this kind of issue where it is unclear why the residential address and the work address are far apart from one another, and does issue audits on that basis where appropriate.

22. Unknown Worksites/Travel/Telecommuting. Recent PERM audits have

focused on the existence of a “possible ‘telecommuting’ benefit and/or ‘roving’ travel requirement. The audit requests seem to conflate some concepts – “roving” work location, unknown work location and travel requirement – while introducing telecommuting as a separate issue. As a result, employers are unsure how to respond to the audit request, as the descriptions don’t cover all possible employment arrangements. In addition, employers are unsure how to prepare a prevailing wage request, conduct recruitment and complete an ETA 9089 where one or more of these issues is relevant to the position. It would be helpful if DOL could provide a definition of the terms used in these audits so employers can better understand whether a position falls into one or more of the categories.

Once common definitions are established, DOL can provide additional guidance on form completion and recruitment. Please indicate whether the definitions below are correct and if not, why not.

a. Position Requirements Related to Work Location

i. Roving Requirement: Such a position would have no set work location AT

ANY TIME. The employee would be required to move from location to location continuously. The employee may or may not have a “home base” location and may or may not be required to be in a particular region. The employee does not move his or her residence from place to place, but rather stays temporarily in each work location. [Note: Roving positions by definition have a travel requirement, see below.]

ii. Unknown Future Work Location: The position is based at a specific

worksite, but the worksite may change in the future. The employee DOES NOT continuously move around like a roving employee, but may be reassigned to a different work location after a period of time. The employee would move his or her residence to the new work location. The future work location(s) may or may not be in a particular region. [Note: Positions with unknown future work locations may or may not also have a travel requirement, if travel is required in addition to future relocation.]

iii. Telecommuting Option or Requirement: Where there is a

telecommuting option, the employee may work from home or from the employer’s work site. In some cases, the telecommuting option may be limited; the employee is required to spend a specified amount of time at a work site. A position with a telecommuting requirement is based entirely at


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the employee’s home and there is no option to work at the employer’s work site. A position is only considered to be a “telecommuting” position where work is conducted from home during ordinary business hours. It would not include situations in which an employee conducts work from home during other times (e.g. at night or on the weekends). [Note: Telecommuting positions may or may not involve a travel requirement.]

b. Position Requirements Related to Travel

i. Travel Requirement: The position is in a fixed location(s), but involves

required domestic or international travel for a temporary period. Occasional travel that is common for the position but not mandatory for the performance of the job duties is NOT a travel “requirement.” Future relocation is NOT a travel requirement.

DOL Response: “Roving employee” issues are still governed by the 1994 Farmer memo. DOL recognizes that business practices have changed with developments in technology, and any changes in policy will be made with clear notice to stakeholders, such as an FAQ or Federal Register notice that will provide additional guidance and clarification. DOL confirmed that if telecommuting were happening not during ordinary business hours, (i.e., checking e-mails remotely after hours) this would not result in the position being considered a telecommuting position.

23. Audit Request for Declarations Regarding Payment of PERM Costs.

Several recently issued audits have included a request that the employer and the sponsored worker submit signed declarations stating whether the employer received payments of any kind related to obtaining labor certification. The ETA 9089 already includes a specific question in I.e.23 “Has the employer received payment of any kind for the submission of this application?” and in I.e. 23-A, “If Yes, describe details of the payment including the amount, date and purpose of the payment.” In response to an audit, the employer and the sponsored worker must sign the submitted ETA 9089 under penalty of perjury, and affirm that “all information contained herein is true and accurate.” If the employer has already affirmed “no” in response to question I.e.23 regarding payments on the ETA 9089, the request for additional declarations appears to be redundant. In effect, the audit request for declarations creates a new type of required documentation. We would respectfully note that when the PERM regulations were published, DOL advised that “the regulations indicate what documentation employers are required to assemble, maintain, and submit to respond to an audit letter… We believe a prudent employer would gather the documentation before filing the application and have it available in anticipation of possible audit.” 69 Federal Register 77358-59 (Dec. 27, 2004)2. Nowhere in the regulations did DOL specify that employers and foreign workers must provide declarations regarding payment of attorney fees – this audit request is essentially creation of a regulation by audit. We would respectfully request that DOL cease asking for these declarations, as they create a new documentation requirement that exceeds the scope of required information from the regulation.


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DOL Response: DOL believes that these are appropriate audit issues, and expects these requests to continue. DOL has evidence to indicate that some employers continue to require employees to pay for PERM costs, and DOL believes that the checkbox on the form could easily be missed by an employee signing the form. DOL did agree to look into eliminating these requests for repeat filers that have provided this declaration on multiple occasions.

24. Audits that Include Incorrect or Erroneous Information/Requests. Several

members have reported receiving audits that include questions which are not related to the submitted ETA 9089. For example, the audit may ask about travel, but no travel was indicated on the ETA 9089 and the sponsored worker resides in the immediate vicinity of the place of employment. (A-xxxxx-xxxxx; A-xxxxx-xxxx; A-xxxxx-xxxxx; A-xxxxx-xxxxx). Audits have also asked for documentation of the employer’s Employee Referral Program (ERP) when the ERP was not listed as a form of recruitment (A-xxxxx-xxxxx). Some audits have referenced information not included in the ETA 9089 at all, i.e., audit states that the sponsored worker lives in Phoenix, AZ and works in Troy, MI, but the 9089 shows that the worker lives in San Mateo, CA and works in Redwood Shores, CA (A-xxxxx-xxxxx). These audit requests appear to be a training issue for analysts. While employers must respond to these audits, it does not appear that merely filing an audit response will ensure that the errors in generating these specific audit requests will be identified and fixed in future cases. How may stakeholders advise DOL of these types of audits with quality control problems?


Prevailing Wage Issues

25. Multiple Locations. At the January 6, 2012 stakeholder meeting, ACIP suggested that DOL allow employers to list multiple locations on a prevailing wage request, where the job and requirements are the same. This would be efficient for DOL and would eliminate some situations in which an employer gets a different occupation or level assigned for the same position. In response, DOL suggested that an employer could list multiple locations on a prevailing on a prevailing wage request. In fact, an employer is only permitted to list multiple locations where a “yes” answer has been provided to the question “Will work be performed in multiple worksites within an area of intended employment or a location(s) other than the address listed above?” (Question D.C.7). This would indicate that the specific position will be in more than one location. There is no option for employers to request a prevailing wage determination for multiple locations for different positions. Could DOL change the ETA 9141 to allow employers to add additional worksites without answering “yes” to Question D.C.7?

DOL Response: This question was not addressed at the Stakeholder Meeting. 26. Financial Managers. Lately, DOL has been assigning the occupation of Financial

Manager to many positions, even where the job duties do not involve financial management or similar job duties listed in the Financial Manager description. For


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example, an Audit Manager is assigned the Financial Manager occupation code despite the fact that the position does not in any way involve the management of funds. In fact, the Audit Manager is a higher level auditor who is involved in both conducting audits and supervising junior auditors. [See Case No. P-100-xxxxx-xxxxxx.] Can DOL provide additional training to the PW staff on the Financial Manager position to help clarify that it involves the actual management of funds and does not include all other positions within the financial industry (auditor, accountant, financial analyst) that may involve the management of junior staff?

DOL Response: This question was not addressed at the Stakeholder Meeting. 27. Rejection of Alternate Wage Surveys that are Incomplete or Lack

Information. Members have reported frequent rejections of alternate wage surveys that have been submitted to the prevailing wage unit in support of the ETA 9141. Several of these rejections have not been due to a specific deficiency of the survey or because the survey was not a match to the position, but because not all leveling information was submitted, or because the submitted survey data was incomplete. Rather than rejecting the survey due to missing survey information, could the NPWC instead issue a request for the missing information, so that employers are able to correct the problem, rather than have to submit a new wage request and wait two months for a decision? (P-100-xxxxx-xxxxxx) DOL Response: DOL does issue a Request for Information when possible, but relies on employers/attorneys to provide complete information regarding alternate wage surveys to allow the wage determination to be based upon that survey. DOL does not have the resources to issue a Request for Information on every incomplete request, particularly those where major components of the alternate wage survey are not provided.

28. Survey Methodology – Frequently Used Alternate Surveys. Rather than

requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?

DOL Response: Methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.

29. Size of Survey Sample for Private Surveys. Several members have recently reported rejection of published surveys (such as Radford and Towers Watson) because the number of workers in the submitted survey was fewer than 30. In the November 2009 Prevailing Wage Determination Policy Guidance Memorandum, the requirement that at least 30 workers be included in the sample applies only to employer-conducted or custom surveys, not to published surveys. Can you confirm this understanding of the minimum sample size specified in the guidance?


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30. Rejection of Private Surveys that Include a Multi-County or Multi-State Area.

In the past, both DOL and the SWAs have permitted employers to use multi-county surveys (or multi-state surveys, for regions such as NJ-NY-CT), provided that the survey data represents similar jobs in the area within normal commuting distance of the place of intended employment. Recently, DOL has rejected some of these surveys, finding that the survey is not sufficiently specific to the place of employment (i.e., rejecting a San Francisco/Silicon Valley survey as that is broader than the county of employment). However, the November 2009 Prevailing Wage Determination Policy Guidance Memorandum expressly states that “The borders of PMSAs, MSAs, or CMSAs are not controlling in the identification of the normal commuting area; an employer location just outside the PMSA, MSA or CMSA boundary may still be considered to be within normal commuting distance.” As the prevailing wage guidance recognizes an expanded survey area beyond the immediate MSA, rejecting a private survey that matches the normal commuting distance of the place of intended employment appears incorrect. Can you confirm that private surveys that provide regional wages are valid as alternate wage sources, even if the area surveyed covers multiple MSAs?


Follow-Up Issues

31. SOC Codes. Following up from previous stakeholder meetings, the new SOC

codes are still not available in the PERM online system. Please provide an update.


32. Prevailing Wages and “Combination of Occupations” DOL continues to issue

PWDs wherein they assign an extra point for a combination of occupations in situations that do not warrant this designation. These determinations have concluded that a combination of occupations exists in situations where the job duties of the position in question may be more extensive than the very basic general responsibilities listed for the occupational category, but that are clearly encompassed within the broader range of responsibilities listed for one of the two occupational categories. This has been particularly prevalent in the context of college and university cases, where DOL assigns a combination of a postsecondary teacher in a particular field of scholarship, with another distinct occupation in that field. In responding to appeals of these determinations, DOL has ignored submissions of the O*Net list of job duties that show that the addition of teaching responsibilities is covered under the umbrella of the non-postsecondary teacher occupational category, or that the job title in question is listed under the postsecondary teacher occupational category. To provide a few examples:


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a. (1) Position Title: Associate Director. Combination Assigned: Law Teachers, Postsecondary (SOC Code 25-1112) and Education Administrators, Postsecondary (SOC Code 11-9033) [Case No. P-100-xxxxx-xxxxxx]: DOL assigned a combination of occupations, even though teaching classes is one of the responsibilities listed for Education Administrators, Postsecondary.

b. (2) Position Titles: Clinical Instructor and Assistant Professor. Combination

Assigned: Health Specialties Teachers, Postsecondary (SOC Code 25-1071) and Dentists, General (SOC Code 29-1021) [Case No. P-100-xxxxx-xxxxxx and Case No. P-100-xxxxx-xxxxxx]: DOL assigned a combination of occupations even though “Clinical Instructor,” indicating a teaching role in a clinical/patient-care setting, is one of the job titles listed under Health Specialties Teachers, Postsecondary.

Even if DOL can establish that a position’s job duties span two occupational categories, the current practice of choosing one of the two categories and then adding a point to raise the wage level is contrary to the Department’s own guidance. In a situation where DOL determines that a combination of occupations exists, the required protocol is for the wage level to stay the same, but for DOL to assign the higher of the two wages for that level, as between the two relevant occupational categories. (See Employment and Training Administration Prevailing Wage Determination Policy Guidance of November 2009.)


33. “Unrecognizable” Surveys. Following up from the January 2012 stakeholder

meeting, has DOL looked into providing additional information on the proper way to list specific alternative surveys?



questions raised by dol stakeholders for meeting ...prevailing wage determinations dol received...

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