The US Department of Labour holds stakeholder meetings three to four times per year to discuss technical issues with employers, bar associations, student advisers, 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. The Department of Labour 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 Programme Electronic Review Management (PERM) application, and the wages for each of the jobs are different, the Department of Labour should look at the percentage of time spent in the job duties of each occupation; 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, the Department of Labour automatically defaults to the higher wage, regardless of the percentage of time.

Reconsideration of prevailing wage determinations is also very muddled. The Department of Labour has a three-step procedure:

  • First, the Department of Labour 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 Centre to reconsider the determination. If this type of review does not produce a lower wage, the centre will provide a detailed explanation about the methodology used in the wage determination.
  • The third option is an appeal to the Board of Alien Labour Certification Appeals (BALCA). BALCA 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 whether 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 must be used.

An interesting point made by the Department of Labour was that, as few prevailing wage determinations are appealed through any of the three steps, the Department of Labour does not have sufficient feedback to identify policies or procedures that need to be changed.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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