Attachment 4 - Determination of Prevailing Wage

Attachment IV

Employment and Training Administration, Labor
was no fraud or willful misrepresentation, or if the Department of Justice
decides not to prosecute, the Certifying
Officer shall decide the case on the
merits of the application.
(d) Finding of fraud or willful misrepresentation. If as referenced in § 656.30(d),
a court, the DHS or the Department of
State determines there was fraud or
willful misrepresentation involving a
labor certification application, the application will be considered to be invalidated, processing is terminated, a
notice of the termination and the reason therefore is sent by the Certifying
Officer to the employer, attorney/
agent, as appropriate, and a copy of the
notification is sent by the Certifying
Officer to the alien and to the Department of Labor’s Office of Inspector
General.
§ 656.32 Revocation of approved labor
certifications.
(a) Basis for DOL revocation. The Certifying Officer in consultation with the
Chief, Division of Foreign Labor Certification may take steps to revoke an
approved labor certification, if he/she
finds the certification was not justified. A labor certification may also be
invalidated by DHS or the Department
of State as set forth in § 656.30(d).
(b) Department of Labor procedures for
revocation. (1) The Certifying Officer
sends to the employer a Notice of Intent
to Revoke an approved labor certification which contains a detailed statement of the grounds for the revocation
and the time period allowed for the employer’s rebuttal. The employer may
submit evidence in rebuttal within 30
days of receipt of the notice. The Certifying Officer must consider all relevant
evidence presented in deciding whether
to revoke the labor certification.
(2) If rebuttal evidence is not filed by
the employer, the Notice of Intent to Revoke becomes the final decision of the
Secretary.
(3) If the employer files rebuttal evidence and the Certifying Officer determines the certification should be revoked, the employer may file an appeal
under § 656.26.
(4) The Certifying Officer will inform
the employer within 30 days of receiving any rebuttal evidence whether or

§ 656.40

not the labor certification will be revoked.
(5) If the labor certification is revoked, the Certifying Officer will also
send a copy of the notification to the
DHS and the Department of State.

Subpart D—Determination of
Prevailing Wage
§ 656.40 Determination of prevailing
wage for labor certification purposes.
(a) Application process. The employer
must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. The SWA must
enter its wage determination on the
form it uses and return the form with
its endorsement to the employer. Unless the employer chooses to appeal the
SWA’s prevailing wage determination
under § 656.41(a), it files the Application
for Permanent Employment Certification either electronically or by mail
with an ETA application processing
center and maintains the SWA PWD in
its files. The determination shall be
submitted to an ETA application processing center in the event it is requested in the course of an audit.
(b) Determinations. The SWA determines the prevailing wage as follows:
(1) Except as provided in paragraphs
(e) and (f) of this section, if the job opportunity is covered by a collective
bargaining agreement (CBA) that was
negotiated at arms-length between the
union and the employer, the wage rate
set forth in the CBA agreement is considered as not adversely affecting the
wages of U.S. workers similarly employed, that is, it is considered the
‘‘prevailing wage’’ for labor certification purposes.
(2) If the job opportunity is not covered by a CBA, the prevailing wage for
labor certification purposes shall be
the arithmetic mean, except as provided in paragraph (b)(3) of this section, of the wages of workers similarly
employed in the area of intended employment. The wage component of the
DOL Occupational Employment Statistics Survey shall be used to determine
the arithmetic mean, unless the employer provides an acceptable survey
under paragraph (g) of this section.

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§ 656.40

20 CFR Ch. V (4–1–05 Edition)

(3) If the employer provides a survey
acceptable under paragraph (g) of this
section that provides a median and
does not provide an arithmetic mean,
the prevailing wage applicable to the
employer’s job opportunity shall be the
median of the wages of workers similarly employed in the area of intended
employment.
(4) The employer may utilize a current wage determination in the area
under the Davis-Bacon Act, 40 U.S.C.
276a et seq., 29 CFR part 1, or the McNamara-O’Hara Service Contract Act, 41
U.S.C. 351 et seq.
(c) Validity period. The SWA must
specify the validity period of the prevailing wage, which in no event may be
less than 90 days or more than 1 year
from the determination date. To use a
SWA PWD, employers must file their
applications or begin the recruitment
required by §§ 656.17(d) or 656.21 within
the validity period specified by the
SWA.
(d) Similarly employed. For purposes of
this section, similarly employed means
having substantially comparable jobs
in the occupational category in the
area of intended employment, except
that, if a representative sample of
workers in the occupational category
can not be obtained in the area of intended employment, similarly employed means:
(1) Having jobs requiring a substantially similar level of skills within the
area of intended employment; or
(2) If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of
the area of intended employment.
(e) Institutions of higher education and
research entities. In computing the prevailing wage for a job opportunity in
an occupational classification in an
area of intended employment for an
employee of an institution of higher
education, or an affiliated or related
nonprofit entity, a nonprofit research
organization, or a Governmental research organization, the prevailing
wage level takes into account the wage
levels of employees only at such institutions and organizations in the area
of intended employment.
(1) The organizations listed in this
paragraph (e) are defined as follows:

(i) Institution of higher education
means an institution of higher education as defined in section 101(a) of
the Higher Education Act of 1965. Section 101(a) of that Act, 20 U.S.C.
1001(a)(2000), provides an institution of
higher education is an educational institution in any state that:
(A) Admits as regular students only
persons having a certificate of graduation from a school providing secondary
education, or the recognized equivalent
of such a certificate;
(B) Is legally authorized within such
state to provide a program of education
beyond secondary education;
(C) Provides an educational program
for which the institution awards a
bachelor’s degree or provides not less
than a two-year program that is acceptable for full credit toward such a
degree;
(D) Is a public or other nonprofit institution; and
(E) Is accredited by a nationally recognized accrediting agency or association or, if not so accredited, is an institution
that
has
been
granted
preaccreditation status by such an
agency or association that has been
recognized by the Secretary of Education
for
the
granting
of
preaccreditation status, and the Secretary of Education has determined
there is satisfactory assurance the institution will meet the accreditation
standards of such an agency or association within a reasonable time.
(ii) Affiliated or related nonprofit entity
means a nonprofit entity (including
but not limited to a hospital and a
medical or research institution) connected or associated with an institution of higher education, through
shared ownership or control by the
same board or federation, operated by
an institution of higher education, or
attached to an institution of higher
education as a member, branch, cooperative, or subsidiary.
(iii) Nonprofit research organization or
Governmental
research
organization
means a research organization that is
either a nonprofit organization or entity primarily engaged in basic research
and/or applied research, or a United
States Government entity whose primary mission is the performance or

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Employment and Training Administration, Labor
promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the
subject under study, without specific
applications in mind. Basic research is
also research that advances scientific
knowledge, but does not have specific
immediate commercial objectives although it may be in fields of present or
commercial interest. It may include research and investigation in the
sciences, social sciences, or humanities. Applied research is research to
gain knowledge or understanding to determine the means by which a specific,
recognized need may be met. Applied
research includes investigations oriented to discovering new scientific
knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the
sciences, social sciences, or humanities.
(2) Nonprofit organization or entity, for
the purpose of this paragraph (e),
means an organization qualified as a
tax exempt organization under the Internal Revenue Code of 1986, section
501(c)(3), (c)(4), or (c)(6) (26 U.S.C.
501(c)(3), (c)(4) or (c)(6)), and which has
received approval as a tax exempt organization from the Internal Revenue
Service, as it relates to research or
educational purposes.
(f) Professional athletes. In computing
the prevailing wage for a professional
athlete
(defined
in
Section
212(a)(5)(A)(iii)(II) of the Act) when the
job opportunity is covered by professional sports league rules or regulations, the wage set forth in those rules
or regulations is considered the prevailing wage (see Section 212(p)(2) of
the
Act).
INA
Section
212(a)(5)(A)(iii)(II),
8
U.S.C.
1182(a)(5)(A)(iii)(II) (1999), defines ‘‘professional athlete’’ as an individual who
is employed as an athlete by—
(1) A team that is a member of an association of six or more professional
sports teams whose total combined revenues exceed $10,000,000 per year, if the
association governs the conduct of its
members and regulates the contests
and exhibitions in which its member
teams regularly engage; or

§ 656.40

(2) Any minor league team that is affiliated with such an association.
(g) Employer-provided wage information. (1) If the job opportunity is not
covered by a CBA, or by a professional
sports league’s rules or regulations, the
SWA must consider wage information
provided by the employer in making a
prevailing wage determination. An employer survey can be submitted either
initially or after SWA issuance of a
prevailing wage determination derived
from the OES survey. In the latter situation, the new employer survey submission will be deemed a new prevailing wage determination request.
(2) In each case where the employer
submits a survey or other wage data
for which it seeks acceptance, the employer must provide the SWA with
enough information about the survey
methodology, including such items as
sample size and source, sample selection procedures, and survey job descriptions, to allow the SWA to make a
determination about the adequacy of
the data provided and validity of the
statistical methodology used in conducting the survey in accordance with
guidance issued by the ETA national
office.
(3) The survey submitted to the SWA
must be based upon recently collected
data:
(i) A published survey must have
been published within 24 months of the
date of submission to the SWA, must
be the most current edition of the survey, and the data upon which the survey is based must have been collected
within 24 months of the publication
date of the survey.
(ii) A survey conducted by the employer must be based on data collected
within 24 months of the date it is submitted to the SWA.
(4) If the employer-provided survey is
found not to be acceptable, the SWA
must inform the employer in writing of
the reasons the survey was not accepted.
(5) The employer, after receiving notification that the survey it provided
for the SWA’s consideration is not acceptable, may file supplemental information as provided in paragraph (h) of
this section, file a new request for a
prevailing wage determination, or appeal under § 656.41.

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§ 656.41

20 CFR Ch. V (4–1–05 Edition)

(h) Submittal of supplemental information by employer. (1) If the employer disagrees with the skill level assigned to
its job opportunity, or if the SWA informs the employer its survey is not
acceptable, or if there are other legitimate bases for such a review, the employer may submit supplemental information to the SWA.
(2) The SWA must consider one supplemental submission about the employer’s survey or the skill level the
SWA assigned to the job opportunity or
any other legitimate basis for the employer to request such a review. If the
SWA does not accept the employer’s
survey after considering the supplemental information, or affirms its determination concerning the skill level,
it must inform the employer of the reasons for its decision.
(3) The employer may then apply for
a new wage determination or appeal
under § 656.41.
(i) Wage can not be lower than required
by any other law. No prevailing wage
determination for labor certification
purposes made under this section permits an employer to pay a wage lower
than the highest wage required by any
applicable Federal, state, or local law.
(j) Fees prohibited. No SWA or SWA
employee may charge a fee in connection with the filing of a request for a
PWD, responding to such a request, or
responding to a request for a review of
a SWA prevailing wage determination
under § 656.41.
§ 656.41 Certifying Officer review of
prevailing wage determinations.
(a) Review of SWA prevailing wage determinations. Any employer desiring review of a SWA PWD must make a request for such review within 30 days of
the date from when the PWD was
issued by the SWA. The request for review must be sent to the SWA that
issued the PWD within 30 days of the
date of the PWD; clearly identify the
PWD from which review is sought; set
forth the particular grounds for the request; and include all the materials
pertaining to the PWD submitted to
the SWA up to the date of the PWD received from the SWA.
(b) Transmission of request to processing center. (1) Upon the receipt of a
request for review, the SWA must re-

view the employer’s request and accompanying documentation, and add
any material that may have been omitted by the employer, including any material sent to the employer by the SWA
up to the date of the PWD.
(2) The SWA must send a copy of the
employer’s appeal, including any material added under paragraph (b)(1) of
this section, to the appropriate ETA
application processing center.
(3) The SWA must send a copy of any
material added by the SWA under paragraph (b)(1) of this section to the employer.
(c) Designations. The director(s) of the
ETA application processing center(s)
will determine which CO will review
the employer’s appeal.
(d) Review on the record. The CO reviews the SWA PWD solely on the basis
upon which the PWD was made and,
upon the request for review, may:
(1) Affirm the prevailing wage determination issued by the SWA;
(2) Modify the prevailing wage determination; or
(3) Remand the matter to the SWA
for further action.
(e) Request for review by BALCA. Any
employer desiring review of a CO prevailing wage determination must make
a request for review of the determination by the Board of Alien Labor Certification Appeals within 30 days of the
date of the decision of the CO.
(1) The request for review, statements, briefs, and other submissions of
the parties and amicus curiae must
contain only legal arguments and only
such evidence that was within the
record upon which the affirmation of
the PWD by the SWA was based.
(2) The request for review must be in
writing and addressed to the CO who
made the determination. Upon receipt
of a request for a review, the CO must
immediately assemble an indexed appeal file in reverse chronological order,
with the index on top followed by the
most recent document.
(3) The CO must send the Appeal File
to the Office of Administrative Law
Judges, Board of Alien Labor Certification Appeals, 800 K Street, Suite 400–
N, Washington, DC 20001–8002.
(4) The BALCA handles the appeals in
accordance with § 656.26 and § 656.27 of
this part.

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