DOL Updates Prevailing Wage Determination (PWD) FAQs

 

On March 15, 2011, the Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) updated guidance on prevailing wage requests. The updates to the PWD FAQs follows:

GENERAL

[1. March 24, 2010]

2. How can I check the status of a prevailing wage application I filed using the

iCERT System?

You can check the status of your case through your iCERT System account at

icert.doleta.gov.

REQUESTING A PREVAILING WAGE DETERMINATION (PWD)

[1. March 24, 2010]

2. I submitted a prevailing wage request via the iCERT System. Should I also mail a

copy of the ETA 9141 to the NPWC?

No. Please submit only one ETA 9141 per prevailing wage request. In order to reduce the

number of duplicate PWDs, employers must not mail copies of ETA 9141s that were

submitted via the iCERT System. In addition, employers should not submit multiple

requests, via the iCERT System or mail, for the same PWD request.

[3, 4. March 24, 2010]

PWD FORM (ETA FORM 9141)

[1 - 3. March 24, 2010]

4. Are there any items on the ETA 9141 that requestors are routinely leaving

incomplete and may cause a delay in processing or result in the request being

voided?

Yes. As a general rule, requestors must complete all required items on the ETA 9141.

Although entries may vary based on the visa classification supported by the application,

there are items on the ETA 9141 that requestors are routinely leaving incomplete or

incorrect. Such items include:

• Item D.a.6, job duties. In item D.a.6., the employer must provide a description

that details the duties with enough specificity to issue a prevailing wage

determination under a relevant Standard Occupational Code (SOC). To do this,

the employer must specify the field(s) and/or product(s)/industry(ies) involved,

any equipment the employee will use, and pertinent working conditions.

• Items D.b.1-1b, education. In item D.b.1, mark only one U.S. diploma or degree

as the employer's minimum requirement. If you choose "Other degree", indicate

in item D.b.1a the specific U.S. diploma or degree (e.g., JD, MD, DDS, etc.). If

the position requires a degree, in item D.b.1b indicate the major(s) and/or field(s)

of study for the required degree.

• Items D.b.4-4b, employment experience. If the employer checks 'No' to the

experience question or leaves it blank, but indicates the number of months of

experience required, we will consider that as a 'Yes'. In addition, if the job duties

(item D.a.6) or the special requirements (item D.b.5) indicate that the position

requires employment experience, the requestor must ensure it corresponds with

the answers to items D.b.4-4b.

• Items D.c.1-6, place of employment. "N/A" is not an acceptable answer for place

of employment, and the ETA 9141 will be voided and returned to the requestor.

The employer must provide the complete street address, city, county, and state for

the location where the work will be performed.

• Item D.c.3, the city of the place of employment. Enter the appropriate city for the

worksite address. For Connecticut, Maine, Massachusetts, New Hampshire,

Rhode Island, and Vermont, enter the city or town, as appropriate.

• Item D.c.4, the county of the place of employment. Enter the appropriate county,

not country (USA), for the worksite address. For Alaska, enter the appropriate

borough or census area. For Louisiana, enter the appropriate parish. If the city is

not part of any county, enter the city as the county.

• Item D.c.7 and D.c.7a, multiple worksites. If there are multiple worksites, identify

the geographic place(s) of employment indicating each Metropolitan Statistical

Areas (MSAs) or the county (or independent

city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding

state(s) where the employee will work. The employer must provide enough

geographic detail to cover all the known worksite locations of intended

employment. The NPWC does not require employers to input every physical

address worksite for the prevailing wage determination. The NPWC deems it

sufficient to provide the appropriate MSA or the county (or independent

city(ies)/township(s)/borough(s)/parish(es) as appropriate) and the corresponding

state(s) where the employee will work.

ISSUANCE AND RECEIPT OF A PWD

[1 - 5. March 24, 2010]

6. Why did the PWD I received have a different SOC than the one I suggested on the

ETA 9141 item D.a.2. and 2a.?

The NPWC assigns a SOC based on a review of the job duties (item D.a.6.) and special

requirements (item D.b.5.) listed on the ETA 9141. In addition, we may consider other

items on the ETA 9141 such as the education requirements (D.b.1-1b.) or employment

experience (D.b.4-4b).

7. I included multiple worksites on the ETA Form 9141 and I received wages for all

of the worksites. Is the wage listed on page 4 of the ETA Form 9141 (Item E.4) the

required prevailing wage?

The wage entered on page 4 of the ETA Form 9141 corresponds to the worksite location

listed in D.c.1 to 6. The NPWC must provide wages for each location listed in the

application. However, the NPWC does not dictate how the employer should use those

wages to comply with the applicable program regulations and guidance. The employer,

therefore, must ensure that it offers a wage that complies with the appropriate regulation

and program specific guidance.

8. Does a prevailing wage determination expire?

Yes. Each prevailing wage determination issued by the NPWC has a validity period

which can range from no less than 90 days to one year. The validity period of a PWD is

the period between the determination date and the expiration date, as listed in Items E.8

and E.9 of the approved Application for Prevailing Wage Determination (ETA Form

9141).

PROGRAM SPECIFIC INFORMATION

[1 - 3. March 24, 2010]

4. The questions on the 9141 do not match the questions on the 9089 PERM form.

Can OFLC revise the 9141?

No. The 9141 form is used to provide prevailing wage determinations for multiple OFLC

programs. Some fields may not apply to all programs.

ALTERNATE WAGE SOURCES

[1 - 3. March 24, 2010]

4. How do I request that the NPWC use a Higher Education American

Competitiveness and Workforce Improvement Act (ACWIA) wage in determining

the prevailing wage?

ACWIA wages provide a prevailing wage based on a sample of similar institutions apply

to occupations in institutions of higher education, related or affiliated nonprofit entities,

nonprofit research organizations, or governmental research agencies. On the ETA Form

9141 item D.a.6 (Job Duties), after the description of job duties, include the following

statement surrounded by asterisks: "***This employer is an institution of higher

education or a research entity under 20 CFR 656.40(e). ***"

5. I am an institution covered by ACWIA, but there is no ACWIA wage for the

suggested SOC I want to use. How will the NPWC apply an ACWIA wage?

The NPWC must issue an ACWIA wage for all institutions covered by ACWIA. When a

SOC is assigned to an occupation that does not have an ACWIA wage, the NPWC will

use wages for the closest occupation where an ACWIA Higher Education wage is

available. The NPWC will enter an explanation of the assigned wage into the Additional

Notes section of the PWD.

[6. March 24, 2010]

7. I submitted a survey with a request for a prevailing wage determination, but the

determination I received had an OES wage? Why was the survey not used?

When the NPWC does not accept a survey, the NPWC includes an explanation in the

Additional Notes section of the ETA Form 9141 as to why the survey does not meet the

requirements. If the requestor did not include a notation on the ETA Form 9141

requesting the use of survey, the PWD may have been processed prior to the survey being

matched with the record. If the survey was referenced on the ETA Form 9141 and the

PWD did not include an explanation for non-acceptance, send an email to

FLC.PWD@dol.gov with the subject line: Request for Review of Survey: Wage Source

P-xxx-xxxxx-xxxxxx.

To ensure that the NPWC matches the submitted surveys with the appropriate PWD

request, requestors must clearly indicate in the job duties section of the ETA Form 9141

the request for an alternative wage source. For prevailing wage determination requests

submitted via the iCERT system, employers must submit the supporting wage

documentation to the NPWC along with the iCERT case number. The NPWC will accept

copies of surveys by email at FLC.PWD@dol.gov.

8. I submitted a 9141 using iCERT and requested the use of a survey. If I mail in a

survey, should I also include a copy of the 9141?

No. Include a cover letter that includes reference to the iCERT prevailing wage case

number. The NPWC will accept copies of surveys by email at FLC.PWD@dol.gov.

Please reference the prevailing wage case number in the email along with the survey.

9. Can the employer provide a survey with a redetermination request after the

NPWC has issued a prevailing wage determination?

No. If the employer seeks to utilize a wage survey, the employer must submit the survey

with the original prevailing wage request. The NPWC will reject redetermination requests

to consider surveys that were not submitted with the original prevailing wage and the

NPWC will require the employer to submit a new prevailing wage determination request

with the wage survey included.

PWDs FOR SPECIFIC OCCUPATIONS

[1. March 24, 2010]

2. I see a new SOC user guide was issued by BLS in February 2010 and that it

contains some new occupations. How are PWDs for these new occupations affected

by this guide?

BLS conducts wage surveys once a year using current SOCs. Therefore, BLS may release

wage information for new occupations in their July 2011 data release. Questions

regarding when the new SOC will be implemented by BLS should be directed to BLS. In

the meantime, the NPWC will issue PWDs using the closest SOC for which data is

available.

3. I suggested an "All Other" SOC on the PWD request I submitted, but the

determination I received had a different SOC? When are "All Other" SOCs used?

The NPWC assigns the most applicable SOC based on the job duties provided in the

prevailing wage request. The NPWC only uses "All Other" SOCs (e.g., Biologists, All

Other) when it cannot identify a more specific SOC.

4. Are all Postdoctoral Fellow positions considered entry level?

No. The NPWC considers a Postdoctoral Fellow position as entry level unless the

position requires significant experience. If the employer requires significant experience

and/or training for a Postdoctoral Fellow position, the NPWC may issue a wage higher

than a level one. Additionally, if the position requires supervising other postdoctoral

fellows or has other significant special requirements or duties, the wage issued may be

higher than a level one.

RETURNED OR VOIDED PWD REQUESTS [March 24, 2010]

HELP WITH PWDs

[1, 2. March 24, 2010]

3. How can I contact the National Prevailing Wage Center (NPWC)?

You may contact the NPWC by sending an e-mail to FLC.PWD@dol.gov. You may also

contact the NPWC by phone at (202) 693-8200 between the hours of 8:00 a.m. and 5:00

p.m., Eastern Time. However, the phone representative only provides basic information

and will direct most inquirers to send their inquiries to the NPWC's mailing address and

the NPWC's e-mail box at FLC.PWD@dol.gov.

4. To whom will the NPWC provide information regarding a submitted prevailing

wage request? If I have a question or issue regarding a submitted request for a

prevailing wage determination, can I or my representative receive information from

the NPWC?

The NPWC will only provide application specific information to individuals named as

the Requestor Point-of-Contact on the ETA Form 9141, Section B. The NPWC cannot

provide information to persons not named as the point-of-contact.

iCERT PORTAL

[1. March 24, 2010]

2. I am having technical problems completing my application in iCERT. Whom

should I contact?

If you are experiencing technical problems with iCERT, please contact the OFLC iCERT

helpdesk at OFLC.PORTAL@dol.gov.

CORRECTIONS

1. I received a PWD from the NPWC, but then realized I wanted to change or

correct some information I had originally submitted on the 9141. Whom do I

contact at the NPWC to make the changes?

All PWDs issued by the NPWC are final. The only exception is when the PWD contains

an inaccuracy caused by the NPWC. If the employer wants a PWD with different entries,

the employer must submit a new request.

2. How can I request a correction to a prevailing wage determination?

An employer who receives a PWD that contains one or more government generated

errors (i.e., that are not the result of preparer errors on the ETA Form 9141), must request

a correction of the PWD by sending an email to FLC.PWD@dol.gov. The subject line

should read: Request for Correction: P-xxx-xxxxx-xxxxxx. Examples where an employer

may request a correction include, but are not limited to, the following: a mismatch

between the wage level and the wage amount; an incorrect validity period; or a non-

American Competitiveness and Workforce Improvement Act (ACWIA) wage for an

ACWIA institution. Please note: employers must not use the correction process to request

a redetermination of an NPWC-issued PWD.

REDETERMINATIONS

1. I disagree with the PWD. How can I request a redetermination?

An employer may request a redetermination by filing supplemental information as

provided under 20 CFR 655.10(g) and 656.40(h). If the employer submitted the original

prevailing wage request via iCERT, the employer should use the redetermination request

option in iCERT to submit the redetermination request within 30 days from the date of

the prevailing wage determination and provide any supplemental information via email to

FLC.PWD@dol.gov. For prevailing wage requests originally submitted via mail, the

employer must send their request for redetermination and supplemental information

within 30 days from the date of the prevailing wage determination to the following

address:

U.S. Department of Labor

Employment and Training Administration

Office of Foreign Labor Certification

National Prevailing Wage Center

Attn: PW Redetermination

1341 G Street, NW

Suite 201

Washington, DC 20005-3105

2. When should I use the redetermination request option in the iCERT system?

In iCERT, employers must use the redetermination request option for redeterminations of

the prevailing wage issued by the NPWC. Employers must not use it for iCERT issues or

other questions. For questions or issues regarding a PWD, including corrections, please

email the NPWC at FLC.PWD@dol.gov. For issues with the iCERT system, please send

an email to OFLC.PORTAL@dol.gov

3. How will submitting a redetermination request impact the validity period of my

existing prevailing wage determination?

If the NPWC affirms the employer's redetermination request, the prevailing wage validity

period remains the same. If the employer's redetermination request is modified, the

NPWC will update the prevailing wage validity period to reflect the redetermination

decision date. If the employer requests a redetermination based on a PWD issued before

the release of new OES wage data that is available at the time of the redetermination, the

NPWC will use the new OES wage data and establish a new validity period.

4. Can the employer provide a survey after the NPWC has issued a prevailing wage

determination with a redetermination request?

No. If the employer seeks to utilize a wage survey, the employer must submit it with the

original prevailing wage request. The NPWC will reject requests to consider surveys

upon redetermination when the employer did not include a survey with its original wage

request. Instead, the NPWC will require the employer to submit a new prevailing wage

determination request with the wage survey included.

CENTER DIRECTOR REVIEWS/CHALLENGES/CO REVIEWS

1. I disagree with the PWD redetermination issued. How can I file a request for

Center Director Review/Challenge under the H-1B or PERM programs or a request

for CO Review under the H-2B program?

For the H-1B and PERM programs, employers must submit requests for Center Director

Review/Challenge in writing no more than 30 days after determination. Employers must

send their requests for Center Director Review/Challenge to the following address:

U.S. Department of Labor

Employment and Training Administration

Office of Foreign Labor Certification

National Prevailing Wage Center

Attn: PW Center Director Review

1341 G Street, NW

Suite 201

Washington, DC 20005-3105

For the H-2B program, employers must submit requests for CO Review in writing no

more than 10 days after determination. Employers must send their requests for CO

Review to the following address:

U.S. Department of Labor

Employment and Training Administration

Office of Foreign Labor Certification

National Prevailing Wage Center

Attn: PW CO Review

1341 G Street, NW

Suite 201

Washington, DC 20005-3105

APPEALS

1. I disagree with the final CO Review, Director Challenge or Director Review. How

can I file an appeal with BALCA?

For all programs, employers must submit requests for review by the Board of Alien

Labor Certification Appeals (BALCA) in writing no more than 30 days after

determination. Employers must send their requests for BALCA review to the following

address:

U.S. Department of Labor

Employment and Training Administration

Office of Foreign Labor Certification

National Prevailing Wage Center

Attn: PWD Appeal

1341 G Street, NW

Suite 201

Washington, DC 20005-3105

2. Can I submit additional information on appeal?

No. Appellate review is completed based solely on the record up to the date of the final

CO determination. Only the information that was submitted under § 655.10(g) or

656.40(h) will be included in the appeal file.

WITHDRAWALS

1. I submitted a PW request using iCERT, but now I want to withdraw the request.

Whom do I contact at the NPWC to request a withdrawal?

Employers/attorneys can withdraw a case themselves using the Withdrawal feature in

their iCERT account.

CNMI PREVAILING WAGE DETERMINATIONS

1. How does the NPWC calculate the prevailing wage for nonagricultural

(permanent, H-2B, H-1B, H-1B1, E-3) positions in the Commonwealth of the

Northern Mariana Islands?

The NPWC follows the appropriate program's regulations with respect to determining

prevailing wages in CNMI. As with all prevailing wage determinations, if the job

opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at

arms-length between the bargaining representative and the employer, the wage rate will

be set by the agreement. If the job opportunity is not covered by a CBA, the employer

may provide a survey that complies with the regulations for the specific visa

classification at: 20 CFR 655.10(f) (for H-2B positions), 655.731(2)(A) (for H-1B, H-

1B1, E-3 positions), or 656.40(g) (for H-1B, H-1B1, E-3 or permanent positions). If the

job opportunity is not covered by a CBA and the employer does not provide a survey or

provides one that does not meet regulatory standards, the employer may request that the

NPWC use a prevailing wage determined under the Davis Bacon Act (DBA) or the

Service Contract Act (SCA), as appropriate. See www.wdol.gov. If none of these

sources provide a CNMI wage for the occupation listed by the employer or for an

occupation requiring a substantially similar level of skills within the CNMI area of

intended employment, then the NPWC will use the Occupational Employment Statistics

(OES) wages of similarly employed workers having substantially comparable jobs with

employers outside of the area of intended employment. The Department has determined

that Guam is the most similar area of intended employment where OES wages are

available, due to its close physical and economic proximity to the CNMI. Accordingly,

for prevailing wage determinations based on the OES survey, Guam OES wages are used



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