DRAFT MINUTES FOR DOL ETA LIAISON MEETING
NOVEMBER 15, 2000, 2 PM
WASHINGTON, D.C.

(note: these minutes have not been cleared by DOL yet,
and therefore are only an unofficial draft)

Present from U.S. DOL:

Dale Ziegler  - Chief, Alien Labor Certification Programs
Harry Sheinfield  - Solicitor’s Office, ETA
Jim Norris – Special Counsel, ETA
Denis Gruskin -- Senior Manpower Specialist, ETA
Scott Cote – Management Development Specialist, ETA
Charlene Giles – Agricultural Team Leader, ETA
Tracie Czwartacki –Management Development Specialist, ETA  

Present from AILA:

Eleanor Pelta - Chair, DOL Liaison Committee
John L. Pinnix – First Vice President, AILA Executive Committee
Deborah Notkin – Treasurer, AILA Executive Committee
Rebecca Burdette – DOL Committee Member
Josie Gonzalez – DOL Committee Member
Allen E. Kaye – DOL Committee Member
Warren R. Leiden – DOL Committee Member
Cyrus Mehta – DOL Committee Member
Theresa Brown- Associate Director, Advocacy, AILA National Office

QUESTION:

1.  Would you kindly give us an update on the PERM program?  What are the steps that are currently being undertaken to implement PERM? What is the latest projected implementation date? Do you have any information to share with respect to the technology that will be used? Is there any effort to make sure the technology will be more “glitch-proof” than the current LCA technology? Is there a proposed form available for review?

ANSWER:

Mr. Ziegler gave an update on the PERM program.  The first draft of the PERM regulations has been completed and is being prepared  for internal clearance in DOL and then submission to OMB.  It is estimated that the DOL clearance procedures will be completed in two weeks.  The DOL is looking to publish a Notice of Proposed Rule Making in January 2001.  At present the target date for implementation of the PERM program is October 2001.

The technology to implement the PERM program will be similar to the current LCA faxback system however a different program is being planned to avoid some of the problems experienced with the LCA program.  The DOL is aware that expanded telephone lines and FAX equipment will be necessary to successfully implement the PERM system.  The DOL is making plans to deal with these needs.  Capacity of the system has been the main problem with the LCA system and DOL is taking steps to avoid similar problems with the new PERM system.  The PERM system will allow employers to apply by FAX as well as hard copy at a central processing location.  Initially, PERM applications cannot be filed on the Internet. One of the major problems with problems with internet filing is capturing a signature electronically.  The technologies available to allow this type of application are very expensive.  The DOL goal is to get the PERM program implemented as quickly and simply as possible.  Since this program will serve all U.S. employers, not just those represented by attorneys, the goal is to make is accessible to everyone equally.    Although similar to the LCA program, DOL estimates that a much smaller number of applications will be filed.  The PERM form will be a multi-page form much longer that the LCA form is presently.  In order for the FAX in PERM system to function, there will not be a requirement to send in supporting documentation with the application.  If supporting documentation is required, DOL can request specific documentation after the initial FAX submission. 

QUESTION:

2. What is the estimated date of publication of the RIR conversion regulation? Is DOL preparing any instructional memos to the field on implementation?

ANSWER:

DOL hopes to get the final regulation out by December 2000 since there were not a large number of comments.  However, each comment does need to be addressed in the publication of the final regulation.  The regulation will most likely be effective 30 days after publication.

QUESTION:

3. What is the status of the planned system upgrades to the LCA faxback system?  The committee has shared numerous tips with the AILA membership for increased success with faxback, but has concerns that even when properly used, the system will not be able to handle the increased volume due to the recently signed AC-21 law. It would also help if there were an increase in manpower at DOL to deal with the breakdowns in the  faxback system, or additional assistance  through the software provider.  

ANSWER:

After the recent LCA faxback system problems, the two locations seem to be functioning again.  Incoming faxes are split evenly between the Philadelphia and the San Francisco locations.  Philadelphia is current and San Francisco is processing 10/24/00 applications.  Staffing has been part of the problem with the San Francisco location.  DOL is adding a full time technical support employee for each location to assist with technical problems.  Steps have also been taken to double the storage capacity for each system as well.  Future systems will be planned for the large volume of traffic that the system has been experiencing.  Since the system will reject applications with deficiencies, staffing is still important to review rejected applications for a response.  DOL has had problems in recruiting adequate staff to perform these functions.  Another issue concerns the number of telephone lines available for responses in addition to incoming applications.  Additional lines are being added to relieve this problem.  The system presently sends fax responses out at night because of the lower number of incoming applications.  In the future the system will have a capacity of 40 –50% over the expected need.  The original system was sized to accommodate 300,000 to 350,000 transactions per year.  The present activity rate is 520,000 to 550,000 per year.  The system expansion is also required because of the expected increase in H-1B petitions because of the changes included in AC-21 legislation.  The portability of H-1B will also lead to the filing of H-1B petitions without the certified LCA.  DOL is aware that INS will accept for filing H-1B petitions with proof that the LCA has been submitted.  DOL indicated that this point may be the subject of a change in procedure when the new AC-21 regulations are implemented. 

QUESTION:

4. Given the delays in LCA faxback, and that most LCA’s are sent through the faxback system,  the committee would like  DOL to send out a memo mandating that, at the very least,  the old ETA 9035 forms be adjudicated within seven days? We sense that these are now being given very low priority at the Regional Certifying Offices, but in fact they are still required to be adjudicated within seven days.

ANSWER:

The regional Certifying Officers have a conference call every two weeks to discuss issues.  Some of the Regional offices are very backlogged and may not be able to meet the 7 day response time for LCA application that are filed directly with the individual regional offices.  DOL gets reports every two weeks from the regions and the LCA backlog does not seem to be a serious problem at this point.  DOL is committed to staffing the regional offices better to address the backlogs.  Unfortunately, until the budget is passed by Congress, DOL can not commit to specific staffing at this time. 

QUESTION:

5.  We have heard that H-1B regulations under ACWIA may be published as early as December. We assume that, since much of what was contained in the proposed regulations was expressed as agency views or solicitations for ideas, rather than as proposed regulations, the H-1B regulations will be issued in proposed form, not final form. Can you comment on this?

ANSWER:

No decision has been made on these points.  DOL has no prediction on whether these regulations will be published as Interim Final or Notice of Proposed Rulemaking or when they will be effective.  DOL will follow APA guidelines.  One issue that may delay any definitive action will be the fact that the LCA form will be expanded to four pages and changes will need to be made to the software as well as the hardware of the current LCA system to meet the requirements of the regulations. 

QUESTION:

6. If the ACWIA H-1B regulations are issued in the near future, the faxback system will have to accommodate the new H-1B dependent form, which is four pages long. What is being done to adjust the system technologically to accommodate the new form.  The committee is concerned that the new regulation, coupled with the increased pressure on the faxback system due to the provisions of the recently signed AC-21 law, might throw the system in disarray once again, thus causing further delays in processing.

ANSWER:

See answer to question 5.

QUESTION:

7. Is there any update on the use of the Bureau of Labor Statistics’ National Compensation Survey as an acceptable alternate survey?   One of our committee members reports having had an NCS wage accepted in California.

ANSWER:

DOL could not answer this questions.  They will investigate this matter and respond later.  A general discussion was held about the difference in acceptance of alternate wage surveys in the various regions and the need for a more uniform approach, presumably directed by DOL in Washington, D.C.  There was also a discussion of the fact that when an alternate wage survey is proposed this usually means a longer processing time for the application because of delays in review of the alternate surveys by the regional certifying offices.  A suggestion was made to submit a prevailing wage request to the SESA and get the alternate wage cleared prior to the actual submission of the permanent labor certification application.  Apparently because of regional differences this procedure is not possible in some locations around the country. 

QUESTION:

8. The committee has learned that a new OES survey will be available shortly. Can you comment on when the survey will be released? Also, we have received information indicating that occupations in the new survey will be crosswalked not to the DOT but to something called the SOC (“Standard Occupational Classification”). What is the SOC? What is the difference between the SOC and the O*net that we have been told about? What is the current status of the O*net? Is it a usable system currently? Does the O*net  include guidelines similar to the DOT?  If not, are the SVP guidelines in the DOT still valid? How does one access the O*net?  The SOC?

ANSWER:

The SOC is a system of job classifications used by OMB.  The 1998 version of the SOC replaces the 1980 version.  After September 30, 1999 the OES was required to use SOC classifications in preparing their salary survey information.  The census bureau also uses these classifications.  For additional information on the SOC refer to [www.BLS.GOV/SOC] and [ONLINE.ONETCENTER.ORG].   ONET breaks out some of the SOC categories that require further refinement.  The DOT will not be updated and references to the DOT have now been transferred to ONET.  The DOT had over 14, 000  occupations.  ONET has 974 occupations and SOC only has 821 occupations. Since ONET does not have an SVP component, there are many question concerning the analysis of minimum requirements for education and experience for a given occupation.  The PERM program will be based on ONET.

QUESTION:

9. We understand that there was a “meeting of the minds” on a recent CO teleconference, during which it was agreed that one print advertisement should be sufficient for RIR’s for shortage occupations, including computer professionals. Can you please comment on this? There are significant variations in RIR practice nationally, as a recent survey done by the committee’s Vice Chair demonstrates.  These variations related not only to number of ads, but to where they are placed, whether the employer’s name needs to be in the ad, and other issues. Particularly in light of the advent of PERM, some consistency is necessary.

ANSWER:

During the recent CO teleconference a standard was set for historically certified positions.  The trend is toward consistency among the regions.  The pattern of recruitment is the key to an RIR case.  For historically certified positions, one print ad accompanied by other documentation of a pattern of recruitment immediately prior to filing the RIR application should be sufficient for shortage occupations.  The PERM program will provide a bright line test for acceptable recruitment documentation nationwide.  It may take several years for the PERM program to be fully implemented.

QUESTION:

10.  In the AC-21 law there is a provision allowing individuals who are beneficiaries of pending I-140 petitions to obtain further extensions of H-1B status beyond the 6 year limit if more than 365 days have passed since the filing of the I-140 petition OR since the original filing date of the underlying labor certification. In order to have an I-140 petition filed which will trigger this extension, U.S. employers will need to obtain an approved labor certification. How does DOL plan to assure that labor certifications will not be pending for extensive periods of time thereby depriving U.S. employers and their H-1B employees of the benefit that Congress intended?

ANSWER:

At the present time there is an approximate 20,000 backlog in the permanent labor certification program dating from the time of initial receipt.  The 180 day target included in the AC-21 legislation really only include approximately 7,000 to 8,000 cases.  Over 90% of these cases are in 3 regions.  The backlogs are being reduced.  In the last year the state backlogs have been reduced from 79,000 to approximately 50,000.  The states should  be able to eliminate all their backlogs within two years.  Of course the volume of cases is increasing.  The San Francisco region has the largest backlog followed closely by Chicago and New York.  There is no specific DOL policy designed to address the mandate contained in AC-21.  AC-21 did give DOL a larger percentage of the new fees for H-1B which will allow them to assign more resources to reduce the LCA backlogs at least.

QUESTION:

11. The application that was the subject of the litigation in Matter of El Rio Grande has been certified based upon an OES wage. What is the procedure for applications involving SCA prevailing wage determination in situations where employers ask for the source of the wage data. It seems unjustifiable to put these cases on long-term hold. We suggest that either the data be provided on a timely basis or an OES wage be substituted.

ANSWER:

DOL has no control over the SESAs that will respond to requests for SCA supporting data.  This matter will need to be dealt with in the PERM regulations.

QUESTION:

12.   We have reviewed the proposed prevailing wage form and have the following questions: Why is this a “faxback” form?  Must the job description and job requirements on the 750A conform exactly to the description on the form 9098?  If so, the form does not allow you to state educational requirements in terms of alternative degrees, nor does it allow you to describe alternative work experience. Why are there so many pay period alternatives given? Why are job requirements in small boxes, but the job description is in a large empty box?  How does one complete the “level” boxes next to the requirements boxes?

ANSWER:

The new prevailing wage form will be reviewed by SESA personnel however, it is required to be scanned.  That dictates the format that must be used to allow the scanning technology to capture the required information.  This form will be used for all DOL programs except for the H-2A program for temporary agricultural workers.  The new prevailing wage form will supplement the PERM process and be an integral part of the permanent labor certification application.  This form will be the only place that the job description will appear.  There may be problems if the same Prevailing Wage request is intended to be used for multiple employees in the same position.  Depending on the final PERM format, it may be advisable to prepare separate Prevailing Wage request for each individual to assure that safe harbor will be provided either for the H-1B process or the PERM process.  DOL did not have an answer for the questions about alternate degree requirements.  The multiple pay periods are required to reflect all possible means for pay.  The box sizes for job requirements and job description may need to be revised.  The level boxes were included for internal purposes.  These may be eliminated in the final format.  An employer control number must also be assigned for each prevailing wage request submitted.

NOTE:  To view the proposed prevailing wage form, please go to: www.workforcesecurity.doleta.gov.