OFFICE OF FOREIGN LABOR CERTIFICATION
June 16, 2015 Quarterly Stakeholder Meeting
These notes were taken by NAFSA members during a stakeholder meeting. They
reflect information provided by government officials in an informal setting. They are
best used as general information concerning current agency processes and policies, not
formal guidance, and it is important to recognize that agency processes and policies are
subject to change. NAFSA notes and liaison summaries do not constitute legal advice.
PERM Processing Update
New data posted 6/1/2015 – Go to PERM and PW Processing Times tab on iCert portal page:
https://icert.doleta.gov/.
H-1B, H-1B1, E-3 Labor Condition Applications
Question 1 - Changes to ETA Form 9035: DOL solicited comments on ETA Form 9035 in
January 2015 and accepted comments through March 2, 2015. Does OFLC anticipate any
changes will be made to ETA Form 9035 based upon the comments received? One change that
would be particularly useful and that would not be substantive in nature would be to change the
field for the prevailing wage survey to allow the OES Wage Survey to be chosen from a dropdown menu rather than having to enter “OFLC Online Data Center” as part of a free-text field.
DOL is looking into enhancement for survey data disclosure – that is, to the section of the LCA
where users enter the name of employer surveys, to reduce denials when not entered correctly.
Question 2 - Elimination of Need for Prevailing Wage Determinations to use the $90/hour
Default Wage for Labor Condition Applications: When there is not sufficient data to establish
the prevailing wage for certain occupational classifications in particular geographic areas, the
OFLC assigns a default wage of $90 per hour. This lack of data is particularly common for
physicians. However, to use the $90/hour default wage employers must first obtain a prevailing
wage determination from the NPWC. Without the prevailing wage determination, the LCA is
typically denied for not correctly identifying the source of the prevailing wage. Will OFLC consider
changing its practice to permit employers to list the default $90/hour prevailing wage citing “OFLC
Online Data Center”?
OFLC announced that it will be adding a footnote in the Foreign Labor Certification Data
Center's Online Wage Library (OWL) permitting the use of the $90/hr default wage rate on
Labor Condition Applications for physicians and other highly compensated occupations (without
a PWD) that currently lack OWL wage data
July 31, 2015, OWL added a new sentence under occupations where leveled wages cannot be
provided, citing the $90/hour default. The specific language OFLC added appears in red under
an occupation that lists "N/A" for the wage levels and reads "The wage data may be at least
$90/hour, $187,200 year. See http://www.bls.gov/oes/ for an explanation of why OES includes
the footnote."
Recommended listing on the LCA:
G.7. - N/A
G.7a. - N/A
G.8. - N/A
G.9. - $187,200
G.10 - Year
G.11. - OES
G.11a. - 2015
G.11.b. - Drop-down OFLC language, "OFLC online data center"
Please note this can only be used for OES codes found in the ACWIA database for ACWIA
based institutions.
http://www.foreignlaborcert.doleta.gov/pdf/H1B_H1B1_E3_Round3FAQs.pdf
Prevailing Wage Questions
Question 1 - Prevailing Wage Level Assignments: In a recent BALCA decision, Matter of ETH
Cargo Services, 2013-PWD-00001 (Aug. 19, 2014), the Board reversed a wage determination of
OES level IV for a Logistics Manager position and reduced the prevailing wage to OES level II,
finding that “the Center Director mistakenly assumed that any requirement not normal to an
occupation necessitates the assignment of an additional wage level.” BALCA further noted that
“The Center Director’s reliance on the above “special requirements” to affirm a level IV wage
assignment does not represent a reasonable exercise of the discretion afforded to him under the
Department’s guidance and regulations.” We regularly see level IV wage determinations issued
on the basis of the inclusion of specific skills for occupations. Will the NPWC please describe any
additional training that has been or will be conducted for wage analysts in light of Matter of ETH
Cargo Services to ensure that the 2009 PWD Guidance is followed in the way described by
BALCA in this decision?
DOL stated that the BALCA decision was specific to that case but yes, they did inform analysts
through training.
BLS/OES makes updates in ONET throughout the year. OFLC is not notified when ONET
makes changes.
DOL said that they default to ONET (rather than OWL which is only updated every July 1st)
when determining the job zone.
PERM Questions
Question 1 – PERM accounts:
PERM Account Registration and Employer E-Mail Confirmation Delay Problems. AILA
has recently heard from a number of members about issues with PERM account
registration. Members have reported problems regarding delays in verification of the bona
fides of the business entity despite sending substantial documentation, as well as delays in
the company receiving the sponsorship verification e-mail after filing occurs. Examples of email correspondence regarding this issue with the Help Desk are attached.
a. While we understand that the vast majority of PERM account registrations are not
problematic, when problems do arise, it can result in very serious consequences, including
child age-outs and the inability to extend H-1B status for a critical worker. Will OFLC
consider publishing the current processing time for PERM account registrations similar to
the other PERM-related processing times listed on the OFLC website and create a
mechanism to elevate critical issues when the PERM account registration is delayed
beyond normal processing times?
b. If an employer does not receive the sponsorship verification e-mail following the filing of a
PERM application, how soon should the employer representative expect to receive a
phone call asking for verification? How many phone calls are made by DOL to obtain
sponsorship verification before OFLC concludes that the application should be denied for
lack of sponsorship verification?
c. If an employer does not receive the sponsorship verification e-mail or phone calls within a
reasonable period of time, can the employer contact the Help Desk to report the problem
and/or confirm sponsorship?
d. If a PERM application is denied for failure to verify sponsorship, is the denial issued as
soon as it is determined that sponsorship cannot be verified or does OFLC wait until the
normal FIFO adjudication time to deny the application?
e. Rather than issuing a denial in these cases, would OFLC consider issuing a Request for
Information to provide the employer the opportunity to confirm sponsorship?
Establishment of PERM accounts – Processing queue is current (“No substantial backlog” at
this time – apparently there were problems in 2014 and 1st part of 2015 due to resource
constraints.)
PERM Sponsorship Verification issues – Denials for this reason are in the FIFO queue so there
is no way for DOL to pick them earlier
Practical suggestion – if verification email is not issued, contact the Help Desk; you must get a
Help Desk response.
Must confirm verification of filing
Best Practice Advice: Send an affidavit signed by the hiring authority verifying all the verification
email questions and email that to the Helpdesk along with placing a call for confirmation of
verification.
Question 2 - PERM Audit Queue Backlogs: We commend OFLC for its continued efforts to
reduce processing backlogs. OFLC noted in the April 2015 Stakeholder meeting that it is
endeavoring to reduce the current 18+ month processing backlog that exists for audited cases,
and we greatly appreciate OFLC’s efforts on this issue. Is there any timeline for when OFLC
expects to see processing times for audited cases to be reduced?
DOL: Audit queue backlog has gone from 18+ months to 12 months.
They are slowly working on elimination of the backlog, but noted that the drop in processing
times will be gradual as they continue to work through the cases in FIFO order. We may even
see processing times go up before they go down. But, at least, caseload is going down.
There is now less than 12 months’ difference between audit review and analyst review – DOL
plans to get that in a much better place by the end of the calendar year.
Question 3 - Non-Regulatory Changes as Part of PERM Modernization Efforts: We
understand that any regulatory changes to PERM or other OFLC processes will go through the
normal notice and comment procedures under the Administrative Procedure Act. Does OFLC
anticipate making any non-regulatory changes in the interim, such as new FAQs, changes to
forms or templates, or similar changes?
Question 4 - Announcement of Proposed Regulatory Changes: We noted that DOL included
PERM modernization on its regulatory agenda in the Federal Register. Does DOL have any
estimates regarding when it may release proposed regulatory changes affecting PERM or other
processes under the jurisdiction of OFLC?
DOL stated no form changes or significant policy changes should be expected while they are
reviewing modernization-related issues. Every issue that was brought up by stakeholders at the
meeting was said by DOL to be “under consideration” – changes to advertising process, issue of
denials due to harmless error, Special Handling, etc.
Modernization regulations soft target – the end of this calendar year.
Charging fees is in the President’s budget! (even if passed this will be several years in the
making)
Question 5 - PERM Second Audits and Response Deadlines: At the April 2015 stakeholder
meeting, we raised a concern about second audits in the form of Requests for Information (RFIs)
that provide a 15 day response deadline. In particular, we expressed a concern that because
these RFIs are sent solely by regular mail, employers are often left with a very short timeframe in
which to respond to the request. OFLC noted that it would consider changes to this process, such
as a longer response deadline and/or sending these requests via e-mail in addition to regular
mail. Are there any updates to potential changes regarding this process?
RFI’s post-audit are given a 15 day response time, and notice of the RFI is sent by mail.
Stakeholders requested an extended period of RFI response or suggested that the RFI be
emailed. DOL is taking this under consideration.
Question 6 - Supervised Recruitment: A number of members have reported receiving Notices
of Supervised Recruitment in recent weeks, for cases that have been pending adjudication of an
audit response for 18 months or more. In some of these instances, during the time that the PERM
application has been pending, the beneficiary has received a compensation increase, and now
earns a salary greater than what was listed on ETA Form 9089 when the application was filed.
Should employers notify the Supervised Recruitment Help Desk of a change in compensation
prior to placing the supervised recruitment advertisements, which typically require inclusion of the
rate of pay offered for the position?
Issue of Special Handling cases being selected for Supervised Recruitment: DOL wants more
examples. No comment on whether or not they think it’s appropriate
Question 7 - Business Necessity Requests in PERM Audits: We appreciate OFLC’s continued
dialogue regarding the language used for business necessity requests in PERM audits.
Employers continue to report that they are confused when they receive an audit with the current
Business Necessity question and the requirements contained in their PERM application do not
exceed the “minimum baselines established by the O*Net.” Will OFLC be revising the current
Business Necessity question to specifically state which requirements the employer has to justify
based upon business necessity? If so, similar to the practice adopted by USCIS, will OFLC first
issue a draft of the template language for review and comment by the stakeholder community
prior to implementing it? USCIS is currently revising many of its RFE templates and is soliciting
stakeholder feedback prior to implementation. Also, can OFLC provide any additional
transparency regarding what kinds of evidence it would like employers to provide to document
business necessity? In the past, a detailed letter from the employer explaining the particular
requirements and why particular education, amounts of experience, or skills were needed was
generally sufficient. Is there additional documentation or evidence that OFLC recommends that
employers provide in responding to a business necessity audit?
Update: DoL is working on it. “Revision” to template language not yet ready to go because they
are looking at the templates as a whole.
For now, suggestion is to give an explanation for each question (even if it’s not relevant) so the
analyst doesn’t think any questions are being ignored.
There have been denials despite evidence – or detailed letter – DOL is watching this [?]
Question 8 – Telecommuting: At past stakeholder meetings, OFLC has indicated that it views
telecommuting as a benefit that should be disclosed in PERM recruitment, but otherwise has not
provided guidance on the impact of telecommuting opportunities other than pointing to the 1994
Barbara Farmer memo that provides guidance regarding roving employees. Could OFLC provide
the following clarification on PERM applications involving telecommuting?
a. If telecommuting is optional, can be done from anywhere in the United States, and the
employee does not report to a particular company location, should the prevailing wage,
Notice of Filing, Sunday newspaper advertisements and other recruitment efforts be based
at the company headquarters similar to the way roving employee jobs are treated under
the Barbara Farmer memo?
b. If the telecommuter is required to live in a particular geographical area (such as within a
specific state) but the company does not have an office in that geographical area, should
the prevailing wage, Notice of Filing, Sunday newspaper advertisements and other
recruitment efforts be based at the PERM beneficiary’s current address to reflect the
planned location of the employment?
c. If a position involves telecommuting that can be conducted from anywhere in the United
States, does a change in the company’s primary address affect the PERM application if it
occurs after the PERM application is filed? Would the answer to this question change if
the prevailing wage, Notice of Filing, Sunday newspaper advertisements and other
recruitment efforts were based at the PERM beneficiary’s current address?
DOL again stated that it sees telecommuting as a benefit to be disclosed in PERM (though the
point was raised by one of the stakeholders that even though DOL sees telecommuting as a
benefit, not all employees see telecommuting as a benefit.)
Use Employer HQ location for PW and recruiting. DOL confirmed that “roving employees”
guidelines haven’t been changed since 1994. (Barbara Famers Memo: ETA Field Memorandium
48-94§10 DoL 1994)
Telecommuting & PERM Advertisement
1. If telecommuting is mandatory – the PW, ads, etc. must be done at location from which
the employee is telecommuting
2. Permissive telecommuting (the employee is given the option to telecommute, from
anywhere) – PW, ads, etc. should be done at HQ
3. Accommodation at the request of the Employee – HQ
*If HQ relocates out of MSA – could impact PERM filing and may have to re-do
recruitment
*if within MSA it’s just an update to record
Any move outside MSA is considered a different job opportunity
Question 9 - Denial Based Upon Information Outside of Record: Can OFLC analysts rely
upon their own independent research on the Internet and/or other sources in order to deny a
PERM application? If so, will the analysts first issue an RFI to allow the employer to respond to
this new information which was not raised in the audit prior to denying the PERM application?
There have been reports of denials based on evidence outside of the record. Question asked
about how much analysts are allowed to research online and elsewhere?
DoL: Analysts are reviewing publically available information.
ISSUE: Stakeholders expressed concern that when an analyst questions that required
information not in the record and as a result would lead to a denial because the evidence was
not allowed by DoL.
Issue: DoL considers such questions as notice of defect and the petitioner is allowed a
reasonable opportunity to respond.
Remedy (for now): send back all necessary information as a reconsideration. Concerns were
raised that the additional evidence required to answer the analysts concerns would be evidence
not already placed in the record. Answer: evidence would not be new since the analyst put the
issue on the record into evidence in the intent to deny.
Question 10 - Section K Denials: The procedure identified in prior stakeholder meetings for
coordinating the remand of Section K denial cases from BALCA to OFLC included sending an email to a specific individual in the DOL Solicitor’s office. We understand this individual has
recently retired. Has a replacement been identified? While we understand that most of these
cases have been addressed, we understand from AILA members that some cases are still
pending at BALCA and have not yet been remanded. How should this process be coordinated
going forward, and how can we ensure a prompt resolution of any remaining cases?
DoL will review any case that is still in process with BALCA as long as it was filed before the
Section K FAQ was published.