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MINUTES OF DOL LIAISON MEETING ON MARCH 22, 2001
(preliminary minutes—not
yet approved by DOL)
Please provide us with an update as to
the current status of the LCA faxback system. Notwithstanding the cutoff dates posted on
the DOL website, members are reporting a startlingly high percentage of LCAs filed before the cutoff dates that are lost or still awaiting
certification. AILA national reports a level of member frustration that has not been seen
before. The system problems are creating severe difficulties throughout the H-1B process,
and have utterly destroyed any vestiges of confidence in the system.
Have the bugs discovered
in February been adequately addressed?
Have any new technical problems been
uncovered?
Are there any additional tips on
completion of the faxback form that we can be sharing with our members?
In light of the fact that the system
plainly does not work and is not user-friendly, what other alternatives—short term
and long term—are being explored?
ANSWER: As of the date of the meeting, DOL ETA
reported that it was working on LCAs filed on March 1. There were, at that time, 16,000 in
line to be worked, and the Department of Labor was processing 2,000 per day. DOL ETA
reported that they were processing 15 days from receipt.
The problems with the faxback system
generally fall into three categories: Technical Issues, Training Issues and Submission
Issues. With respect to Technical Issues, DOL
ETA has worked hard to fix the systemic problems that have resulted in inadvertent
denials. However, as a result of the problems, DOL ETA employees now look at each denial
before it is sent out.
With respect to Training Issues, DOL ETA
has hired new staff to deal with the faxback system. Training of the new staff has been
slow. DOL is hiring more people with an aim to get within a seven day processing window as
soon as possible. In addition, DOL ETA had in place a system whereby the verifiers had to
register with an affirmative action on the computer the fact that an LCA had a signature.
Many of the verifiers were forgetting this step, resulting in a number of LCAs wrongly
denied for lack of signature. That issue has been addressed, and the verifiers now simply
have to take an affirmative step if there is no signature. With respect to submission, or
user errors, DOL ETA has been trying to educate the public about proper use of the faxback
system. Approximately 15% of the LCAs that are being filed have the 313775 pagelink number
problem. This will happen if the LCA is printed out from the system and filled out by
hand. The 313775 pagelink number will lead to an inability to match the pages of the same
LCA, thereby leading to a lost or denied LCA. Also,
a high number of users are using a signed signature page as a “master” signature
page, sending in different LCAs with the same signature page. This will lead to
unmatchable pagelink numbers. If, due to user errors, the three pages of an LCA have not
been hooked up, DOL ETA will not be able to locate the LCA, except manually.
A question was raised regarding the
ability to “ID” an LCA for internal purposes, if one is filing a large number of
LCAs for a particular company. DOL ETA stated that one can place an internal ID number or
code anywhere on the form that is not in or near a box. DOL ETA recommends not putting an
ID number at the very bottom of the page, as it could be cut off in the faxing process.
Also, users should make sure that they
are putting a name and telephone number on pages one and three so that DOL can contact the
user if there is a problem.
Finally, DOL is looking at decreasing
the number of pages of the LCA at some time in the future, and is investigating other
types of systems that would make the process easier and less prone to technical errors.
Current staffing levels make it impossible to consider returning LCA processing to the
regional certifying offices.
What is the status of DOL’s
preparations for the labor certifications that will be filed under 245(i), particularly
the predicted onslaught of applications that may be filed within the last two weeks of
April.
We note with appreciation that a
directive has been issued to all SESA’s suggesting procedures for dealing with last
minute filings.
Can you give us a sense of the numbers
of 245(i) filings that you are currently seeing?
Is there any information that AILA
should be providing to the membership regarding how these cases should be filed?
ANSWER: DOL ETA definitely expects a high volume of
filings, having already seen signs of this. In California, the number of prevailing wage
requests has increased 100% recently. New York, Dallas and Chicago have all seen increases
in filing, so DOL is expecting a large influx of cases. On March 9th, 2001, DOL
ETA sent out a directive to the SESA’s with information and suggested guidelines for
handling these cases. In the directive, DOL ETA emphasized the need to date stamp cases
correctly, and suggested ways in which the SESA’s could accommodate last minute
submissions. DOL ETA suggested that SESA’s make arrangements for receiving
hand-delivered applications, and stated that if an application is received in the office
or in a post office box designated for receiving such applications by midnight on April
30, they should be stamped in as received on the 30th, notwithstanding the fact
that they may be opened sometime later. It is also important to note that if the
application is received by April 30 but is incomplete, the SESA will send out a 45 day
letter with instructions as to how to complete the application. If the response is not
sent within 45 days, the SESA will request that the employer file the application as a new
application and the case will be assigned a new priority date.
As mentioned in the directive, DOL ETA
stated in the meeting that the submission must include a signed ETA 750A. If it does not include a signed ETA 750A, it
is not an application for alien employment certification and will be returned. Mr.
Sheinfeld stated that DOL ETA would date stamp and accept for filing an ETA 750A that was
not accompanied by a signed ETA 750B, but he could not guarantee how the INS would treat
such an application for 245i purposes. DOL ETA was asked whether it would consider
allowing applications that were mailed by April 30 to be accepted as a 245i case. Mr.
Sheinfeld stated that under DOL regulations, a priority date is assigned as of the day
that the case is received, not as of the date the case is mailed. Therefore, the case must be received by DOL on or
before April 30, in order for it to be included as a 245i case.
DOL ETA stated that it could only
suggest procedures for the SESA to follow, but it cannot mandate that SESA’s remain
open late to handle last minute filings.
What is the current status
of the RIR conversion regulation?
Given that the delay in issuing the
regulation may well mean that 245 (i) labor certifications may be amenable to RIR
conversion, it would be reasonable to allow an ETA 750A that has been filed before the
April 30 cutoff to be amended to bring it in line with a typical RIR filing? Would DOL
consider this?
ANSWER: The RIR conversion regulation is still in
clearance. DOL ETA is hopeful that it will be issued in May. The proposed rule had a
cutoff date that was the date of issuance on the proposed rule. In its comments, AILA
suggested that the DOL change the cutoff date
to the date of the final rule. Under that scenario, cases filed before the date of
issuance of the final rule would be amenable to RIR conversion. DOL is considering this.
If the suggestion is accepted, and the issuance date of the proposed rule is after April
30, the 245i cases would be encompassed by the RIR conversion rule.
Please provide us with an
update on the status of the PERM program.
What is the most realistic date that
this program can be rolled out given
the delays and the current administration’s hold on regulatory efforts. Is there any
substantive obstacle to implementing the PERM program apart from the regulatory hold?
Given the technical problems with the
faxback system, will DOL consider various technological solutions for processing PERM
applications other than a model based on the current LCA faxback system?
What options is DOL considering for
establishing “pattern of recruitment” under PERM?
What is the DOL’s current view on
what types of cases might be flagged for audit under PERM?
ANSWER: PERM is still on track. Although it was one of the
regulatory initiatives that was initially help up in the early days of the Bush
administration, it is included in the administration’s “Blueprint for Change,”
and thus, presumably has the support of the new administration. It is not clear when the
new system will be implemented.
With respect to recruiting , DOL ETA is
currently looking at a specific laundry list of types of recruiting that will be
permissible under PERM. It will be more specific than a “general pattern of
recruitment.” DOL ETA is also aware of the recent H-1B regulations and the types of
recruiting acceptable for dependent employers.
With respect to audits, DOL ETA is
considering random audits, and other audits that would derive from a common sense notion
that a case may be worthy on investigation.
Backlogs at the various SESA’s
and at the Certifying Offices seem to have increased lately recently. The Regional
Certifying Office in Boston is now taking over six months to adjudicate an RIR. There are
also delays in Chicago and Texas.
ANSWER: The backlog total for permanent cases is
between 20,000 and 23,000 in the Regions. There are approximately 73,000 in the SESA’s.
As of March 2, there were 21,000 cases pending at the regions, 9,000 of those had been
pending for more than 9 months. DOL definitely expects an April 30 “bubble” of
cases, just as there was a January 14, 1998 “bubble.” As always, priority will
be given to RIR cases.
Notwithstanding the recent “meeting
of the minds” on RIR filings, in which there appeared to be general agreement that
only one ad would be required for high tech positions, as long as it is accompanied by
evidence of other types of recruitment, this still is not the standard in many regions.
The Regional Certifying Office in Washington State appears to require at least 2 ads. The
Certifying Offices in California and Boston still appear to require more than one ad and
up to three. Is there still an ongoing effort to promote consistency in the RIR process,
and should we continue to bring these inconsistencies to your attention?
ANSWER: There has been a conversation among the
certifying officers confirming that the current practice is to require only one print ad
(plus other types of recruitment, whether internet, headhunters, etc) for historically
certifiable positions. DOL will reiterate this on the next conference call with the
certifying officers. Also, no original tearsheets should be required for these types of
cases.
With respect to RIRs, AILA’s
president-elect, who practices in Dallas, Texas, recently reported that the Certifying
Officer in Dallas indicated that an RIR ad had to contain any special requirements or
educational requirements contained in the ETA 750A, otherwise the ad wouldn’t be
acceptable, or the requirements need to be deleted from the ETA750A. This practice is not
consistent with typical current RIR practice, as most Regions are now accepting the type
of general advertising that companies currently do as a matter of course. Most of the
time, these typical ads do not specify requirements. The view of the Dallas Certifying
Officer appears to be a step backward for RIR filings. Can you shed some light on this
inconsistency?
ANSWER:
DOL agrees that RIR ads do not need to mirror the requirements on the ETA 750A
and that this appears to be inconsistent with current RIR practice in other regions. DOL
will look into this and other reported problems with the Texas Certifying Office,
including requiring original tearsheets and refusal to do special handling cases.
What is the status of the sample
prevailing wage form that we reviewed for our last in-person liaison meeting in November?
ANSWER:
The concept of a national prevailing wage form is being reconsidered.
The new OES numbers that have been
released are significantly higher, particularly for level II positions. This again raises
issues that the committee has raised in prior meetings regarding the acceptability of the
OES as the standard wage survey for H-1B and labor certification purposes.
The DOL regulations at 20 CFR Sections
656.40 and 655.731(a)(2)(iii) provide that the prevailing wage shall be the weighted
average rate of wages, determined by adding the wages of similarly employed workers and
dividing the total by the number of such workers. The regulations further preclude
discretionary bonuses or other types of non-guaranteed compensation to be included in
assessing whether a wage offer meets the prevailing wage.
The OES survey includes the use of
discretionary bonuses, including production bonuses, commissions, cost-of –living
allowances and the like. The OES wage computations in OES do not comply with the
definition of weighted average of the salaries of workers surveyed. OES does not obtain
specific salaries for each worker but rather requests that employers identify how many
employees fit into defined wage ranges. There are other flaws in the OES, including the
fact that there are only two levels, and Level II has the same range for highly
experienced workers and moderately experienced workers.
Would DOL consider amending GAL 2-98
to liberalize the criteria for employer surveys? For example, they could require the
employer survey to meet five out of eight of the criteria. The GAL could also be
liberalized to accept CMSA wages as a rule, and to allow industry-wide surveys. These
would temporarily alleviate some of the inherent problems with the OES.
ANSWER:
DOL is aware of the issues regarding the OES. The regs do not mandate it’s
use, but it is the best that DOL has to offer. OES will not be changed in the near future,
so we will all have to live with the status quo. The PERM proposal will address prevailing
wages and AILA will have an opportunity to comment on this issue in that context. However, DOL is continuing to provide training to
SESA’s on prevailing wage determinations and assessing employer-provided surveys.
AILA would like to post the updated
OES on Infonet as soon as possible. Would it be possible to get the disk?
ANSWER:
The disk has been provided.
There have been problems with the
Connecticut SESA’s interpretation of GAL
2-98 and GAL-1-2000. We have four memos from the prevailing wage specialist rejecting a
Watson Wyatt wage because the region surveyed is too broad, compared with the region
surveyed under OES. Under GAL-2-98 and GAL 1-2000, a broader survey region should be
accepted when a private survey is submitted if it can be shown that the survey could not
find sufficient workers in the area of intended employment. The determination of whether
there are sufficient workers should not be made by reference to whether the OES has a wage
for that specific area. Can DOL provide feedback on this?
ANSWER:
It is true that a survey of a broader area will be acceptable even if the OES
contains wage data for a smaller geographic area. However, under GAL 2-98, the employer
providing the survey must also provide an explanation of why the survey could not obtain
data from a smaller geographic area. If the explanation is reasonable and sufficient, the
employer’s survey should be accepted by the SESA’s notwithstanding what the OES
survey has to offer.
Our membership needs some education
regarding SOC. Does DOL have any explanatory materials we could distribute? Will the Dictionary of Occupational Titles
continue to be the basis for determining whether labor certification job requirements are
unduly restrictive, or will the SOC/O*NET definitions control this analysis?
Here's an example of the significance
of this question. The DOT code for Sofware Engineer, 030-062.010 has an SVP of 8. The
corresponding O*NET title, 15-1032 (Computer Software Engineer, System Software) says in
the “Snapshot Experience Requirements" page that the SVP “range" is
7.0 to < 8.0. If the DOT controls, a requirement for a Master's degree plus two years
of experience is not unduly restrictive. The SVP rating of 8 means that over 4 years and
up to 10 years is a reasonable job requirement for the occupation. The Master's degree
takes up 4 years of SVP, and the two years of experience takes up another two years of SVP
for a total of 6 years - easily within the allowable range. If the O*NET/SOC definition
controls, the job requirement of a Master's degree plus two years of experience could be
deemed to be unduly restrictive, depending on what the range means. Does < 8.0 mean
less than the maximum of SVP 8 (i.e. 10 years)? Or does it mean less than the minimum of
SVP 8.0 (anything over 4 years)? Since many Software Engineers in the past (under the DOT)
have qualified for EB2 status and therefore faced less of a visa backlog if they are from
oversubscribed countries, any interpretation which would not permit Software Engineers to
qualify for EB2 would be very problematic.
Can DOL make
available a crosswalk from the OES to the SOC?
The DOT-SOC crosswalk on the Online Wage Library is not completely
consistent with the DOT-SOC crosswalk on O*NET Online. For example, on the OWL,
Software Engineer, DOT 030-062.010 crosswalks to Computer Software Engineers, Systems
Software, SOC 15-1032. On O*NET Online, Software Engineer, DOT 030-062.010
crosswalks to BOTH Computer Software Engineers, Applications, SOC 15-1031 and Computer
Software Engineers, Systems Software, SOC 15-1032. Under what circumstances may
employers rely on SOC 15-1032 as the source of the prevailing wage?
ANSWER: SOC data
can be obtained from the following website:
http://stats/bls/gov/soc/soc_home/html
The O*NET and the SOC are the same, and the O*NET and OES are being
phased in, while the DOT is being phased out. However, currently, all regions are still
using the DOT.
The O*NET ignores all the old SVP rules, and gives experience
requirements that are in excess, not inclusive of, educational requirements. DOL advises
that Crosswalks are only 98% accurate.
However, DOL
noted that AILA has brought up an important point. DOL had planned to train prevailing
wage specialists on the use of the O*NET, but now DOL realizes that it must also train the
other ALC specialists who are used to the DOT and SVP levels. DOL will do that. Until
then, most regional certifying officers will be using DOT.
ESA QUESTIONS
This question relates to
the employer’s continuing obligation to pay. Where an international company returns
H-1B workers temporarily to the home country facility, with the intent that they will
later return, what is the wage obligation? Can the employer, without terminating the
petition, pay the workers in the home country at the home country prevailing wage without
violating the LCA?
ANSWER:
DOL did not contemplate the referenced situation. DOL is concerned that this is a ploy by the
employer to avoid its payment obligation while benching the employee. However, DOL is unsure about its position and
invites discussion in the AILA comment on the Interim Final Regulation.
This question relates to voluntary
requests for unpaid leave. In the event that, in situation #1, the employee requests
unpaid leave before return, in order to travel, or to seek alternative US employment, is
this sufficient to relieve the employer of the obligation to pay, or would the granting of
the request violate the benching provisions? Does it matter if the employee becomes
the beneficiary of an approved H-1B petition, with new approved LCA, from a new employer?
ANSWER:
DOL is concerned about the voluntariness of the situation. DOL will evaluate such matters on a case by case
basis considering all of the facts and circumstances concerning whether the request truly
is voluntary on the part of the employee. If
the request is for the convenience of the employer or if it is required by the employer,
it will not be considered to be voluntary. If
the request is truly voluntary, then the employer would be relieved of its obligation to
pay. AILA should address the situation in its
forthcoming comments.
This question relates to dependency
attestations. Assume a "single employer", which is such because of a shared
pension plan system (but which in fact is two companies with separate boards, tax id
numbers, executives, and the like), files an attestation that it has not laid off
similarly employed workers in the preceding 90 days, is it in violation of its
attestation if the other company of the "single" employer has laid off workers
within the category within 90 days? That is, does the "single employer"
definition apply to the attestations themselves, or only to the dependency calculations
required under the IFR?
ANSWER:
The Department’s position reflected at page 80223 of the Interim Final
Regulation is that the use of the tax code provisions to determine dependency is solely
for the determination of dependency, not for other purposes. This conclusion is embodied in Section 655.736(b)
of the IFR. The Department had not considered
the potential application of that definition to the attestations. If AILA believes that this is unclear or that
there is merit to using the definition for other purposes, that should be addressed in the
AILA comment to the Interim Final Regulation.
What is the status of ESA’s
efforts to educate employers about the new regulations? Many employers are unrepresented
and will have a large learning curve with respect to these regulations. Two items that
would be helpful are: a very clear list of the documents that must be in the public access
file, as well as a clear list of the documents that do not have to be in the public access
file but must be available in the event of an investigation.
ANSWER:
There are 20 fact sheets in the clearance process which the Department hopes to
be able to promulgate shortly. These will
have specific guidance on the requested items as well as on other items considered to be
useful to the employer community. As soon as
the clearance process has been completed, these fact sheets will be posted to the DOL
website and promulgated in other educational outreach efforts, including through
notification to AILA.
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