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Legal Citations for ILW.COM's Seminar
""Labor Certification with Joel Stewart"
With Joel Stewart, Ron Klasko and Angelo Paparelli
Part 1 held on February 22nd, 2002

For more info, or to signup online, click here.
For more info, or to signup by fax, click here.

Cites regarding prewailing wage issues
* Milleshor, Inc. 2000 INA 288 BALCA, 1/8/02: GAL 2-98 is neither a law nor a regulation but an internal agency document intended to offer guidelines to SESAs. Shows how a SESA’s use of OES can be challenged by finding a better, more representative survey.

* BALCA had set the standard for acceptance of employer surveys in the leading case of Matter of PPX Enterprises Inc., 88–INA–25 (BALCA May 31, 1989) (en banc):

* Maysa, Inc. 98 INA 259 BALCA 5/21/99: An employer’s failure to pay the prevailing wage determined for labor certification purposes while the alien was in H-1B status was not a basis for denial of the labor certification, since the labor certification is a prospective commitment to pay the prevailing wage.

* University of North Carolina, 90-INA-422, June 9, 1992. In this case the Board granted certification to an Employer who raised some wage issues, including the issue of a range of wages. The Board cited the range wage policy in the case. In the matter of University of North Carolina, Employer on behalf of Nalin Rasiklal Parikh, Alien Case No. 90-INA-422, June 9, 1992.

Other issues connected to prewailing wage
* The survey must reflect the area of intended employment. Defined in regulation 20 CFR § 656.3 as the area within normal commuting distance of the place (address) of employment. Regulatory presumption: if place of employment is within an MSA then any place within the MSA is deemed to be within normal commuting distance. “Normal commuting distance” is something to be proven by mileage estimates, bus and train routes, etc.

* Considering a Federal Court challenge (e.g., NAM in H-1B context): Possible grounds for challenge to GAL 2-98: Milleshor case: GAL 2-98 is neither a law or regulation and contravenes APA, legislative intent and rulemaking authority delegated to DOL. DOL regulation contemplates a single prevailing wage, and OES uses a range of wages; DOL regulation contemplates that a prevailing wage for a single occupation be considered, whereas OES is a blend of occupations; DOL regulation states that wages depend on similarly employed individuals based on employees’ skill (a term connoting education and experience) not level of supervision or extent of independent judgment exercised.


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