SUZANNE B. SELTZERKATE KALMYKOVKLASKO, RULON,.ppt

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1、SUZANNE B. SELTZER KATE KALMYKOV KLASKO, RULON, STOCK & SELTZER, LLPROBIN V. CATMUR DARTMOUTH COLLEGE,Calculate, DONT Speculate: Understanding the Four Levels of Prevailing Wage,The Wonders of iCert,Effective January 1, 2010 Prevailing wage determinations (PWD) are issued by the Department of Labors

2、 (DOL) National Prevailing Wage and Helpdesk Center (NPWHC)NEW prevailing wage Form ETA 9141State 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 DO

3、L 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

4、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

5、 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 u

6、nder the current O*NET system),What it MeansWhy 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

7、 it MeansWhy 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 occupations duties,Corres

8、ponding SVP & Job Zones,Job Zone One: Normal: No experience required Examples: Cashiers; Maids; WaitstaffJob Zone Two: Normal: 3 Months to 1 Year Examples: Bakers; Pharmacy Aides; ReceptionistJob Zone Three: Normal: 1 to 2 years Examples: Court Reporters; Dental Assistants,SVP & Job Zones: Experienc

9、e 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 ex

10、tensive 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 App

11、endix 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/beginni

12、ng 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/managementDegree & exp

13、erience outside the range,Perform Your Own PWD,Appendix B/C of Nov 2009 Policy GuidanceSTEP 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 STEP

14、S 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.

15、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, Bus

16、iness or Mathematics. No prior exp. reqd.,Online Wage Library,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,How It Works: Example 2,Post-Doctoral Research Associate in Boston, MA Plan laboratory exp

17、eriments 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 prod

18、ucts 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 Res

19、earch 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,A Post-Doc is NOT level 3,DOL Guidance: “the processshould not be implemented in an automated fa

20、shion. 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 employers job opportunity.” (pg.13) If Ph.D. is normal for entry level, dont add 2 DOL Guidance says Level 1

21、 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

22、 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

23、 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 set

24、ting.,Online Wage Library,Data Analyst,Statisticians,15-2041,MA + 4 yrs exp.,Job Zone 5 Code 3,4 years,Over 4 years,0,Masters,0,Statistical Analysis in medical research setting,Considered a special skill? If yes then 1,1,0,2,Masters,Suzanne,03/31/2010,0,0,Special Skills,Special Skills Do not add a p

25、oint 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

26、 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

27、 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 plantsUse Fortran or C to develop viable mathematical model

28、s. 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

29、 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 ins

30、tructs 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,Chemical Engineers,17-2

31、041,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,Cant go higher than 4!,OES is the pits, what else?,What are our options? Collective Bargaining Agreement (CBA) must use if uni

32、on 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 Unions authorized rep, stating the relevant section of the CBA including job title and wage Private, Published, or your own survey Appendix

33、F of Nov 2009 Guidance provides requirements for Wage Surveys Practice Advisory: DOL is not recognizing many of the surveys,We didnt 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, ed

34、ition, 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 j

35、ob 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.,iCert- ETA 9141,iCert- ETA 9141,Practice Tip: Employers job titl

36、e for the position,ACWIA/ Special Skills/ Travel, etc,Practice Tip: If job schedule varies explain in the job duties section.,iCert- ETA 9141,Practice Tip: Consider if job duties require travel vs. attending conferences,Practice Tip: ACWIA should be listed with the job descriptionmake sure to use AC

37、WIA “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 no

38、ne.,iCert- ETA 9141,Practice Tip: Dont 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 com

39、pleted Important Email Addresses: Technical glitches: oflcportaldol.gov Issues after PWD submission or request for duplicate PWD flc.pwddol.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 & cl

40、ick on determinations issued to request Send addl 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

41、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, c

42、entralized 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 app

43、licable for the PR casesometimes 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 th

44、e (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 OES Prevailing Wage Guidance/Worksheet www.foreig

45、nlaborcert.doleta.gov/pdf/Policy_Nonag_Progs.pdf 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: Email: Robin CatmurDirector, Office of Visa & Immigration ServicesDartmouth CollegeTel: (603) 646-3474Email: Robin.v.catmurdartmouth.edu,