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Practice PointerUse of Alternate Wage Surveys for PERM Prevailing Wage Requestsby the DOL Committee of the AILA New York ChapterIntroductionOften, one of the challenges of preparing a PERM application is obtaining a prevailing wage determination (PWD) that accurately classifies the offered position and is in line with the company’s offered wage. The Department of Labor (DOL) allows use of an employer-provided wage survey if it meets the regulatory requirements. A wage survey from an alternate source (i.e., an employer-conducted survey, a commissioned survey or a published/commercial survey, e.g., Radford and Towers Watson) may offer a solution because such surveys frequently have a broader range of occupations, as well as salary levels more in-line with the real-world conditions of employers. This practice advisory outlines the regulatory requirements that the employer-provided survey must meet to be accepted by the National Prevailing Wage Center (NPWC), and will provide some practical tips on putting forth a strong survey-based prevailing wage request (PWR) (it does not specifically touch on employer-provided surveys for employers covered under ACWIA, which follow slightly different criteria).Background on Prevailing Wage Requirements As part of the PERM process, employers are required to request a PWD from the NPWC and attest on their PERM application that they will pay the beneficiary a wage that is equal to or exceeds the prevailing wage determination. Except for job opportunities covered by a collective bargaining agreement or special law such as the Davis-Bacon Act (these will not be further discussed here), the NPWC will use the DOL Occupational Employment Statistics (OES) wage survey, unless the employer provides an acceptable alternate survey. The employer-provided survey can be submitted either initially or after the NPWC issues a prevailing wage determination derived from the OES survey. If submitted after the NPWC has already issued a PWD, the employer-submitted survey will be deemed a new PWR.The current (as of December 2016) wait-time to receive a PWD for a PERM application is approximately 4-5 months. While use of an employer-provided survey may even further delay processing by the NPWC, as it might take longer to review the employer-provided survey, an alternate survey could provide employers with greater control and predictability in this part of the process (assuming the survey meets the regulatory requirements), and avoid the need to start over if the PWD is not satisfactory.Requirements for an Employer-Provided Wage Survey20 CFR Section 656.40(g) provides the regulatory requirements for the NPWC to accept an employer-provided wage survey in making a PWD. The Office of Foreign Labor Certification (OFLC) has provided additional guidance in its FAQ and memoranda. Specifically, the requirements for an alternate wage survey are:Sufficient information about survey methodology: The employer must provide the NPWC with sufficient information about the survey methodology, including the sample size and source, sample selection procedures, and survey job descriptions. The purpose of this information is to allow the NPWC to evaluate the statistical methodology used in conducting the survey.Recently collected data: A published survey must have been published within 24 months of the date of submission to the NPWC and must be based on data collected within 24 months of the date of submission to the NPWC. The submitted survey must be the most current edition of the survey.Arithmetic mean: The wage requested must be the arithmetic mean, meaning the average of the wages of employers similarly employed in the area of intended employment. If the alternate survey provides only a median and not an arithmetic mean, the median, which is the middle value in the range of wages of workers in similar positions in the area of intended employment, can be used.Cross industry wage data: The wage data must have been collected across industries that employ workers in the occupation. Area of intended employment: As with all wage surveys, the wage must be for the beneficiary’s area of intended employment. The “area of intended employment” is typically “the area within normal commuting distance” of the address of intended employment. The area surveyed can be expanded if the employer can show that there are an insufficient number of workers (less than 30) in the original area.Aligned job descriptions: The job description in the employer-provided wage survey must match the job being offered and not have differences that would place the job into a different occupation. The NPWC will compare each element of the employer’s job description with each element of the alternate survey, and will reject the alternate survey if those elements do not match. This usually leads to a default to the OES wage levels. If an employer’s job description includes restrictive or non-normal requirements, then the alternate survey should have multi-tiered wages. The NPWC may then be able to accept the alternate survey, but will raise the wage level by one level for each atypical or restrictive requirement.Number of those surveyed: The alternate wage source should have surveyed at least three employers and at least 30 workers. Practical Tips on How to Prepare a PWR Based on an Employer-Provided SurveyThe request for the NPWC to use an employer-provided wage survey is made as a regular prevailing wage request on Form ETA 9141 through the iCert website. Completion of Form 9141In Section D., Wage Processing Information, Question #4 “Is the employer requesting consideration of a survey in determining the prevailing wage?” Indicate Yes. In D.4a. “Survey Name,” list the full name of the alternate wage survey. In D.4b., indicate the survey date of publication (which must be, as indicated above, the most current edition of the survey, and published within 24 months of the request).In Section E. “Job Offer Information,” a.1, “Job Title,” after entering the job title of the offered position, enter the title or occupation name and code of the position being used in the alternate wage survey, in square brackets. For example: Site Sample Technician [30210 Laboratory Technician].In Section E., a.5. “Job duties,” after entering the job description, enter a sentence surrounded by asterisks (“***”) requesting use of the alternate survey. This sentence should include the name of the specific survey, as well as the edition, revision and publication date of the survey. Enter the rest of the requested information on Form ETA 9141 as requested. At the final step, on page 7 of the online form, in the section labeled “Attachments”, under the drop-down labeled “Select Document Type”, select “Employer Provided Survey.” Uploading a supporting letter and the alternate survey The NPWC allows employers to upload an explanation describing how the alternate survey matches the job description, and wage analysts will consider this explanation. Employers should also upload a copy of the survey. The employer letter should include the full name and the publication schedule of the survey, including when the data was collected. The letter should also clearly lay out how each element of the employer’s job description matches each element of the job description in the wage survey. Further, the employer should provide a detailed description of the methodology used in the survey that includes a description of how the survey was conducted, defines the area covered by the survey, and states the number of employers and employees surveyed.ConclusionUse of an alternate wage survey may be beneficial to employers in potentially providing better occupation descriptions compared to OES, and the wage data may be more realistically aligned with the salary offered by the employer. Using such a survey could decrease the risk of an unsatisfactory PWD and add predictability to the PERM process. It is critical that practitioners provide strong supporting explanations when submitting a PWR based on an alternate wage survey given the strict and not-easy-to-meet regulatory requirements for alternate wage survey background and content. ................
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