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Bloggings on PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

August 19, 2008

Should PW Processing be Moved from the SWAs to ETA?

At last week’’s ILW.COM Teleconference on PERM, I posed a question which resulted in a lively debate by the guest speakers, especially by David and Michelle. David is a former SWA worker in New York State, who now works for Leon Wildes’ Office (Leon is the lawyer who successfully the John Lennon case many years ago based on an argument that there was no mens rea in the British statute under which John was convicted and that mens rea was required in the US statute, ergo, the drug conviction could not stand). Michelle is a lawyer who practices in Pennsylvania, but better known for her former career with the New Jersey SWA (yes, if you live and practice in Pennsylvania, you can also be a SWA employee in New Jersey at the same time). Both David and Michelle are eminently qualified to provide us with an opinion about the proposal to move Prevailing Wage Determinations from the SWAs to the ETA federal office. To my delight, they both came down on different sides of the issue, and I decided to present the “debate” in today’s blog. David is in favor of the change, and Michelle is against. I ask the readers to comment and give us their opinions as well.

What are the pros and cons of the new proposal to centralize prevailing wage determinations in the Atlanta PERM Center instead of having the SWA's make the determinations?

David Lazaar - Favors Centralized Prevailing Wage Processing by the Federal Government:

  1. Being centralized, should eliminate inconsistent processing by the various SWAs.
  2. Some SWA examiners are not proficient with PWD processing because of inefficiency, lack of training or unfamiliarity based on low volume of requests. Centralized processing should eliminate that problem.
  3. Some SWAs take excessive amounts of time to process. Presumably, Feds will be faster because they will be systematized doing this operation and their people will quickly become proficient because of volume of requests.
  4. A uniform PWD request form, as DOL is proposing to use, should prove much more efficient as it would eliminate the 50 different forms now used.
  5. Ultimately, process may become even more efficient and streamlined as DOL is proposing that in the future, PWD requests will be able to be accomplished using an on-line system. Also, they are proposing to develop a system that will allow repeat users to re-use forms for subsequent requests. (This was shown in the proposed amendment to 656.40).
  6. The prevailing wage appeal system would become quicker and more efficient as  (a), the proposal eliminates the extra step of the SWAs sending the appeal to the Feds (ETA) and waiting for a response, as is required currently. Under the proposal, the appeal goes directly to the NPC who will make the decision. Also, (b) the same people will be handling all appeals so this should promote efficiency and speed in decision-making instead of the current system where each of the 50 states handles their own appeals.

Michelle – Favors Continued Prevailing Wage Processing in the State Workforce Agencies.

  1. We will lose the SWA familiarity with the local employers and local job requirements for particular job titles.  The SWAs now help us suggest an appropriate official SOC title for the job we are dealing with in the local labor market, which may not be duplicated anywhere else.

  2. SWAs in the alien cert process are now our only readily accessible contact to ask questions about anything in the alien cert process.  They generally call back right away. to answer questions about prevailing wage requests or anything else we need help with, (such as what union to contact) and help with placement of job orders.  The new H2b regulation would eliminate everybody at the SWA who is currently an alien labor certification specialist.   The person who will be taking our job orders would not normally have any specialized knowledge of alien labor certification.

  3. We can currently fax a comment with the Prevailing wage form to the SWA clarifying requirements or asking a question, or calling something to their attention (Like please notice that a license is not required.)  This is not likely to be possible when the US DOL creates an on line form, if it resembles  the current on line perm process.

  4. This rulemaking for the new prevailing wage procedure for PERM cases and H1Bs is buried in an H2b proposed regulation where stakeholders would not have noticed to make comments.  This defeats the purpose of a rulemaking comment period under the Administrative Procedures Act.  Most of the stakeholders who do PERM cases and H1Bs don't usually do H2B cases, so they wouldn't tend to read an H2B rule. The agents who do a lot of the H2Bs wouldn't have any reason to consider the effect of the prevailing wage changes on PERM cases and H1Bs.

  5. Uniform forms could be implemented without substituting the national office for the SWA as the party adjudicating the cases.

  6. Reusing an old request only becomes an issue if you are using an on line system, where you cannot save the old request.  If you are faxing in a request, you can use your last request and white out and replace the name of the alien.  You can also send the SWA a copy of the last determination you received, which would only be good for a limited period of time until the determination expires anyway.

Readers are encouraged to send their comments to the Blog!