FGI News and Publications

PERM: Spotlight On Wages

The US Department of Labor holds Stakeholder meetings 3-4 times

per year to discuss technical issues with employers, bar

associations, student advisors, unions, government agencies, and

other interested groups.

At a recent meeting, questions were raised about prevailing wage

determinations for job offers involving combinations of

occupations.  DOL always raises the prevailing wage level if a

position requires the worker to perform sets of duties that are

found in more than one occupation

Stakeholders explain that when a combination of job duties

appears in a PERM application, and the wages for each of the jobs

is different, DOL should look at the percentage of time spent in

the job duties of each occupation, and if a larger percentage of

time is spent in one (and a lesser percentage in the other), the

correct wage is the one for the job in which the employee will

spend the most time working. Currently, DOL automatically defaults

to the higher wage, regardless of the percentage of time.

Reconsideration of prevailing wage determinations is also very

muddled. DOL has a three step procedure:

First, DOL does not include uploads with extensive documentation

in its initial determination because of time constraints, but if

the determination seems unreasonable, employers can provide

supplemental documentation to the officer.

Second, the employer can escalate the issue to the director of

the National Processing Center to reconsider the

determination. If this type of review does not produce a lower

wage, the Center will at least provide a detailed explanation about

the methodology used in the wage determination.

The third option is an appeal to the Board of Alien Labor

Certification Appeals.  The Board consists of administrative

law judges who review the matter from a broad, legal perspective,

but employers must expect considerable delays due to BALCA’s

heavy caseload.

One stakeholder asked if employers could simply file new

prevailing wage requests rather than pursue three kinds of review

and reconsideration. The employer is always free to do that —

however, there is a rule that if two prevailing wage requests are

submitted for the same job offer, the higher of the two

wages has to be used!

An interesting point made by DOL is that as very few prevailing

wage determinations are appealed through any of the three steps,

and, as a result, DOL does not have sufficient feedback to identify

policies or procedures that need to be changed.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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