Key Takeaways from the December 5, 2017 DOL OFLC Stakeholder Meeting

 

NAFSA's Employment-Based Subcommittee has come up with a short list of key takeaways for practitioners in higher ed. from the DOL Office of Foreign Labor Certification (OFLC) Stakeholder meeting on PERM, H-1B and Prevailing Wage issues, held in Washington, DC, on December 5, 2017.

Key Takeaways

  • OFLC is aware of the increase in USCIS RFEs relating to the use of Level 1 wages and/or specialty occupation. However, OFLC indicated that this is a USCIS issue. They further indicated that the 2009 prevailing wage guidance remains in force and is the most current. While it was acknowledged that some sections are outdated, OFLC is currently focusing on H-2B rather than updating the prevailing wage guidance.

  • OFLC anticipates a 15% spike in Prevailing Wage Requests starting in January, 2018; this will likely impact PERM processing due to staff re-assignments to handle the PWD spike. OFLC continues to recommend filing PWD requests 90 days in advance.

  • OFLC anticipates that the new LCA (Form 9035) will not be in place until the summer of 2018, after the cap-subject filing season. The current LCA is due to expire on 5/31/2018, but may need to be extended month-to-month to accommodate the implementation of the new LCA in the IT system. OFLC indicated that it will provide guidance on when the new LCA will be implemented so employers can finalize existing processes.

  • For PERM advertisement purposes, it is acceptable to direct applicants to use a hyperlink or email address, rather than a physical mailing address, to apply for a position as long as the advertisement language meets the regulatory criteria.

  • Section K on form 9089 now has a 4,000-character limit for box 9. If more text is required, the same position can be listed twice so as that the remaining part of the description can be given in box K.9 of the second position.

  • If an employer has a testing requirement for a position for which a Labor Certification is sought, successful completion of the test must be documented in Section K. However, OFLC indicated that any application that requires a test or assessment will likely be audited to determine whether the test is reasonable.

  • OFLC confirmed that the 9089 analyst manually verifies the prevailing wage determination. Therefore, it is critical that the prevailing wage number is entered correctly on the 9089.