Calculate, DON’T Speculate:
Understanding the
Four Levels of Prevailing Wage
SUZANNE B. SELTZER
KATE KALMYKOV
KLASKO, RULON, STOCK & SELTZER, LLP
ROBIN V. CATMUR
DARTMOUTH COLLEGE
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
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
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?
•
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…
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)
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
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
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: Bakers; Pharmacy Aides; Receptionist
 Job Zone Three:
Normal:
 Examples:

1 to 2 years
Court Reporters; Dental Assistants
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
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
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
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
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
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.
Online Wage Library
Financial Services Advisor
03/31/2010
Personal Financial Advisors
13-2052
Kate
BA
Job Zone 4
Appendix D
Code 5
0
2 to
4 yrs
0
BA
BA
0
0
0
0
0
0
0
1
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
Online Wage Library
Post-Doc Research Associate
Material Scientist
Robin
19-2032
PhD or
ABD
Job Zone 5
Appendix D
Code 5 (BA)
0
4 yrs +
PhD or
PhD/ABD
ABD
not BA
0
0
03/31/2010
0
0
0
Per DOL
Guidance
entry level
0 (not 2)
0
0
1 (not 3)
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 …
Post-Doc vs. Prof?
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.
Online Wage Library
Data Analyst
03/31/2010
Statisticians
15-2041
Suzanne
MA
+
4 yrs exp.
Job
Zone 5
4 years
Over 4
years
0
Masters
Masters
0
Code 3
Statistical Considered
Analysis in a special
medical
skill? If
research yes then 1
setting
0
0
1
0
2
Special Skills
 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.
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.
Online Wage Library- Option 1
Online Wage Library- Option 2
What do you do when no level is set?
Online Wage Library- Option 3
What do you do when no level is set?
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
 BUT this conflicts with the regulation which says if
nothing is listed in ACWIA use a comparable position in
ACWIA

Research and Development Engineer
03/31/2010
Chemical Engineers
Robin
17-2041
Ph.D.
+
5 yrs exp
5 yrs
exp
Job
Zone 4
Code 5
2 to 4
years
Outside
range,
add 3
3
Ph.D.
BA
2
5 yrs exp w/
mathematical
modeling
Special
Skill
1
--
0
No
Can’t go higher than 4!
4
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

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 ETA9141
 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?
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 ETA9089?

 ETA 9141 mandatory in PERM cases.
iCert- ETA 9141
iCert- ETA 9141
Practice Tip:
Employer’s job title
for the position
Practice Tip: If job
schedule varies
explain in the job
duties section.
ACWIA/ Special Skills/
Travel, etc…
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”
iCert- ETA 9141
Practice Tip: PW
Request should only
list the primary job
requirement. This
section should match
the ETA-9089
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.
iCert- ETA 9141
Practice Tip: Don’t
forget to list ALL
worksites
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.gov
 Issues after PWD submission or request for duplicate PWD
flc.pwd@dol.gov
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
Challenging a PWD
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

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
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
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
Questions?
Suzanne B. Seltzer
Kate Kalmykov
Klasko, Rulon, Stock & Seltzer, LLP
Tel: 212-796-8840
Email: sseltzer@klaskolaw.com
Email: kkalmykov@klaskolaw.com
Robin Catmur
Director, Office of Visa & Immigration Services
Dartmouth College
Tel: (603) 646-3474
Email: Robin.v.catmur@dartmouth.edu