U.S. DEPARTMENT OF LABOR
Employment and Training Administration
Washington, D. C. 20210

CLASSIFICATION

 

CORRESPONDENCE SYMBOL

 

ISSUE DATE

May 18, 1995

RESCISSIONS

None

EXPIRATION DATE

June 30, 1996

DIRECTIVE

:

GENERAL ADMINISTRATION LETTER NO. 04-95

 

TO

:

ALL STATE EMPLOYMENT SECURITY AGENCIES

 

FROM

:

Barbara Ann Farmer
Administrator
for Regional Management

 

SUBJECT

:

Interim Prevailing Wage Policy for Nonagricultural Immigration Programs

 

  1. Purpose:  To provide policy clarification and procedural guidance for conducting prevailing wage surveys and making prevailing wage determinations for nonagricultural immigration programs until planned regulatory changes can be made to 20 CFR 656.40.

  2. Reference:  20 CFR Part 655, Subparts D and E; 20 CFR Part 655, Subparts H and I; 20 CFR Subparts J and K; 20 CFR Part 656; Technical Assistance Guide (TAG) No.656 Labor Certifications; and ESPL No. 2-91.

  3. Background: Prevailing wage surveys and determinations are made by State employment security agencies in response to labor certification applications, labor condition applications and attestations filed by employers for the purpose of employing immigrant aliens and nonimmigrant aliens in H-1A nursing occupations, in H-1B specialty occupations, in H-2B temporary nonagricultural job opportunities and in off-campus employment of students on F-1 visas. The Department of Labor has significant enforcement responsibilities involving wages and other matters in administering the H-1A, H-1B, and F nonimmigrant programs.

    Recent enforcement actions have shown that SESAs and Regional Offices may not be interpreting and applying existing regulations and policy directives relating to prevailing wage procedures in an accurate and consistent manner. Accuracy and consistency in conducting prevailing wage surveys and making wage determinations protect the wages of U.S. workers and place the Department in the best position to bring enforcement actions against employers who do not fulfill their wage obligations under the H-1A, H-1B, and F nonimmigrant programs.

    The number of immigration programs administered by the Employment and Training Administration and the number of prevailing wage surveys and determinations have increased substantially in recent years accompanied by a decline in resources. This has prompted ETA to look at the most cost effective use of scarce resources devoted to developing prevailing wage information throughout the system. Operating experience shows that current regulatory requirements limit the ability of SESAs to use published surveys, and in some cases, impose impractical requirements on surveys conducted by SESAs. Planned regulation changes will address these issues.

  4. Inquiries:  Direct questions to the appropriate Regional Certifying Officer.

    Action Required:  State Administrators are requested to:

    1. Provide the attached policy and procedural guidance to appropriate staff.

    2. Instruct staff to follow these interim policies and procedures, along with those contained in TAG No. 656 in conducting prevailing wage surveys and in making prevailing wage determinations.

  5. Attachments:1. Interim Prevailing Wage Policy for Nonagricultural Immigration

    Programs Item Page
    1. Background
    2. Labor Certification, Labor Condition Application, and Student Attestation Programs
      1. General Prevailing Wage Policy
        1. Regulatory Requirements
        2. Nature of the Job
        3. Determining Similar Levels of Skills
        4. Jobs Outside Area of Intended Employment
        5. Separate Wage Systems
        6. Skill Levels in Wage Determinations
          1. Entry Level
          2. Experienced Level
        7. Response to Requests for Wage Determinations
        8. Documentation Issues in Responding to Prevailing Wage Requests
      2. Published Wage Surveys
      3. SESA Conducted Prevailing Wage Surveys
        1. Procedures and Methodology
        2. Length of Time Survey Results are Valid
      4. Davis Bacon Act, Service Contract Act Applicability
      5. Challenges to Prevailing Wage Determinations
    3. H-1A Nursing Program
      1. Prevailing Wage Determinations--Regulatory Requirements
      2. SESA Conducted Surveys and Published Surveys
      3. Challenges to SESA Prevailing Wage Determinations
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NOTE: Attachment not available to DMS