Office of Foreign Labor Certification FAQ on Prevailing Wage Determinations Sends Mixed Message

Posted on September 19, 2011 by Immigration/Global Migration Group

By Ian Macdonald

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released Frequently Asked Questions Regarding Delays Issuing Prevailing Wage Determinations and H-1B Labor Condition Applications (pdf).  OFLC’s current priority is to complete H-2B wage redeterminations, but it also notes that it receives voluminous requests for prevailing wage determinations (PWD) in connection with H-1B petitions. When filing an H-1B petition, the employer must pay to the H-1B employee 100% of the prevailing wage or higher. As OFLC points out in its FAQ document, an OFLC-issued PWD is not mandatory for H-1B petitions, and employers filing petitions may use the following alternative sources for determining a prevailing wage:

  • a wage rate included in a collective bargaining agreement;
  • a wage rate for the occupation and area of intended employment under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act;
  • a wage rate produced by a survey conducted by an independent authoritative source that meets DOL regulatory standards; or
  • a wage rate produced by another legitimate information source, such as the Bureau of Labor Statistics Occupational Employment Statistics Survey or a state-generated prevailing wage survey.

OFLC points out, however, that using an OFLC-issued PWD for an H-1B petition provides employers a “safe harbor” against claims that they failed to pay H-1B workers the required prevailing wage. If an employer uses an alternative source for determining the prevailing wage, it is at risk during a DOL wage and hour investigation and/or enforcement action of having to defend its asserted prevailing wage and demonstrate that the PWD meets the criteria dictated by H-1B regulations.

Consequently, should an employer use an alternative prevailing wage source (other than one issued by OFLC) when filing an H-1B petition, it is critical for the employer to ensure that the proper methodology is used by the person preparing the Labor Condition Application (LCA). An inaccurate representation on a LCA or the failure to be in full compliance with the required attestations may subject the employer to certain penalties, including fines, back pay and debarment from obtaining work authorization for foreign national employees. Further, the failure to comply with the DOL regulations regarding the employment of H-1B employees may result in a finding that the company is a “willful violator,” resulting in additional onerous attestation obligations regarding displacement of U.S. workers and recruitment of U.S. workers prior to the hiring of H-1B employees. Thus, it is very important to carefully review any such applications to be filed by the company to ensure accuracy, particularly the PWD used. 
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Prevailing Wage Determinations to Be Processed in D.C.

Posted on December 31, 2009 by Immigration/Global Migration Group

The U.S. Department of Labor has provided notice that beginning January 1, 2010, the Office of Foreign Labor Certification National Prevailing Wage and Helpdesk Center in Washington, D.C. will receive and process prevailing wage determination requests for use in H-1B, H-1B1, H-1C, H-2B, E-3 and permanent labor certification programs. In the same notice, the DOL provides guidance about prevailing wage determinations for applications in the Commonwealth of the Northern Mariana Islands, which have been accepted at the center since November 28, 2009.

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DOL Suspends H-2A Final Rule

Posted on June 6, 2009 by Immigration/Global Migration Group

The Department of Labor is suspending the H-2A Final Rule (published on December 18, 2008 and in effect as of January 17, 2009). That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the DOL is republishing and reinstating the regulations in place on January 16, 2009 for a period of nine months, after which the Department will either have engaged in further rulemaking or lifted the suspension.

The notice of suspension (PDF) was published in the Federal Register on May 29, 2009, and the suspension is effective June 29, 2009. In order to answer employers’ questions about the suspension, the Office of Foreign Labor Certification has issued the document “H-2A Notice of Final Suspension: Frequently Asked Questions”(PDF).

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Office of Foreign Labor Certification Announces New iCERT Visa Portal System

Posted on April 5, 2009 by Immigration/Global Migration Group

The Office of Foreign Labor Certification (OFLC) has announced (PDF) a new iCERT Visa Portal System, starting April 15, 2009. The iCERT System will allow employers to:

  • Prepare and submit applications at any time;
  • Save time preparing applications by pre-populating visa forms with business/contact information;
  • Create and manage sub-account users (e.g., HR staff or in-house legal counsel) to prepare and submit applications on the employer’s behalf;
  • Track the status of applications across visa programs through a single account;
  • Submit requests to withdraw applications; and
  • Notify the Department of Labor, at any time, in the event that unauthorized applications for labor certification have been submitted.

The OFLC’s announcement includes a implementation timeline for the iCERT system.

 

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