OFLC Stakeholder Meeting 7 March 2017 - NAFSA Notes

 

NAFSA notes from the March 7, 2017 Office of Foreign Labor Certification (OFLC) meeting in Atlanta, Georgia.


OFLC Stakeholder Meeting: Prevailing Wage, PERM, and H-1B Programs
March 7, 2017

Government Representatives in Attendance:

  • William Thompson, Acting Administrator, OFLC (via telephone) (currently serving as Deputy
  • Assistant Secretary of Labor)
  • Albert Herrera, Deputy Administrator, OFLC (currently serving as Acting Administrator, OFLC)
  • Bill Rabung, Director of Operations, OFLC
  • Renata Adjibodou, Center Director, National Prevailing Wage Center
  • Brandt Carter, Center Director, Atlanta National Processing Center
  • Shane Barbour, Center Director, Chicago National Processing Center
  • Brian Pasternak, Director of Programs, OFLC

Stakeholder Groups in Attendance:

  • American Immigration Lawyers Association (AILA)
  • NAFSA: Association of International Educators (NAFSA)
  • Council for Global Immigration (CGI)

General Technology Updates

  1. Confirmed transformation project is on hold, and IT modernization is on pause until further notice.
  2. IT division has purposely been trying to create blackout periods during high volume seasons (e.g. H-1B cap) to avoid tech fixes/updates/patches
  3. As of December 2016, audits, RFIs and denials are being sent by email from OFLC. OFLC is encouraging responses to audits, RFIs and supervised recruitment by email.  OFLC does not have specific figures but reports that the majority of audit responses are now being sent in via email. Please note that emails should not exceed 20 MB. When you send an attachment that is too large, this SHOULD generate a non-delivery response from your (Sender's) email system.  REMEMBER TO CHECK your SPAM folders.  There are currently no other mechanism to confirm receipt.

Processing Time Updates

  1. FEIN pre-clearances are currently 3-5 business days
  2. LCA certification is holding steady at 7 days (OFLC noted it was not pre-advised of premium processing suspension that goes into effect April 1, 2017)
  3. Prevailing wage processing times have been reduced to 80-85 days.  NON-OES queue is 120 days.
  4. PERM processing times have been reduced to 3-4 months
  5. NPWC Processing Times: https://icert.doleta.gov/#fragment-2

CAVEAT: FY16-17 budget added some temporary additional funds to help return PERM audit Backlogs and PERM processing.  This funding is ending. Further, OFLC noted that they have no statutory mandate for PERM processing times.  It is unknown at this time how next fiscal year funding changes will affect processing

Case Assistance

  1. If you have prevailing wages that have not been issued beyond the processing times listed above, you should email the prevailing wage help desk at FLC.PWD@dol.gov. Please make sure to list  "Center Director Request" in the subject line when requesting case resolution. 
  2. If you have issues with ACWIA classifications despite submission of documentation establishing ACWIA eligibility,  you can contact the NPWC Help Desk FLC.PWD@dol.gov for direct review. Please list "Redetermination>center Director Review ACWIA classification" in the subject line. In addition, please send them to NAFSA Issuenet at www.nafsa.org/issuenet, so the EB Subcommittee can follow up with DOL at the next quarterly meeting.
  3. PERM Case Assistance: plc.atlanta@dol.gov. Inquiries: DOL mentioned that DOL requested that anyone reaching out to inquire on a perm case include all of the following information; An acknowledgement of receipt will be issued within 2 business days. You should receive a response from the Help desk within 30 days or send again.
    • Employer Name
    • Beneficiary Name
    • Date Application was filed
    • FEIN
     
  4. Audit and Supervised Recruitment (SR) electronic response filings: OFLC does not currently have the ability to respond to a "read" receipt via email.  OFLC will normally send a confirmation of receipt of the audit or SR response within 2 business days. If a confirmation is not received, you can contact PERM help desk at plc.atlanta@dol.gov for confirmation of receipt.
  5. Electronic responses to OFLC document requests: Please remember that attachments larger than 20MB cannot be received by OFLC and should be broken up into multiple emails.
  6. If PERM Business Existence verifications are taking more than 30 days, you should contact PERM help desk at plc.atlanta@dol.gov

Updates Prevailing Wage

  1. The majority of the meeting focused on the problems that arose from the new FAQ issued on March 7, 2017.  DOL did remove it from their website and is taking it under consideration for the moment.
  2. NPWC explained despite the BALCA decisions to the contrary, it has not changed its process for addressing prevailing wage requests for positions involving what they determine are a combination of occupations.  If NPWC determines the position is a Combination Occupation, the analyst will choose the OES category with the higher wage level and also assign a leveling point.  The resulting Combination- Occupation PWD will be determined at the higher wage rate and Level 2.  Please note: NPWC stated even if only one of the job duties is found in a second occupation, they will determine the position to be a combination occupation.  There is no discretion applied.

DOL Wage & Hour Division Regarding Electronic Public Access Files

Special thanks to the AILA—Subcommittee for the following UPDATE on electronic LCA copies for Public Access Files

During the September 12, 2016, DOL Stakeholder Meeting, OFLC stated that it believed that a scanned copy of the signed Labor Condition Application (LCA) could be maintained as part of an electronic LCA public access file but that it would confirm with the DOL Wage & Hour Division on that issue. AILA reached out to the Wage & Hour Division and received confirmation that an employer can maintain a scanned copy of the signed Labor Condition Application and that it does not need to maintain a hard copy of the original signed LCA.