GOLDBLUM & HESS Attorneys at Law

Transcription

1 GOLDBLUM & HESS Attrneys at Law PRACTICE LIMITED TO IMMIGRATION, NATIONALITY, AND CONSULAR LAW Jane W. Gldblum* Wendy Castr Hess** 101 GREENWOOD AVENUE PHONE: (215) JENKINTOWN PLAZA, SUITE 380 FAX: (215) JENKINTOWN, PA * Admitted in PA & NY jane@gldblumhess.cm **Admitted in PA & IL wendy@gldblumhess.cm PREVAILING WAGE OUTLINE 1 Surces t guide practitiner t cmplete bth the Prevailing Wage (PW) request frm and the PERM applicatin Department f Labr s Plicy Guidance f May 9, 2005 with Appendices: Befre the practitiner can/shuld cmplete his/her State s prevailing wage request frm, he/she shuld refer t the Plicy Guidance which prvides step-by-step guidance fr cmpleting the Wrksheet and btaining the right wage level. The Plicy Guidance prvides the fllwing: Appendix A: OES Prevailing Wage Guidance; Appendix B: Checklist t determine OES Wage Level; Appendix C: Wrksheet fr Use in Determining OES Wage Level ( WS ); Appendix D: A List f Educatin and Training Categries fr Prfessinal Psitins; and Appendix E: SVP Guidance Frequently Asked Questins (FAQ) f August 1, When preparing a Prevailing Wage Request, practitiners shuld fllw the steps utlined and cnsider the issues raised belw: 1. Identify Emplyer s Requirements: Educatin, Experience, Skills, etc. 2. Identify the O*NET psitin and cde that mst clsely matches the psitin descriptin. Enables yu t get the apprpriate wage fr PW and PERM purpses: Depending n Occupatinal Cde YOU (and the DOL) select, that will gvern the wage emplyer will have t pay. Fr example, let s assume yu seek certificatin fr a senir engineer with prgramming and prject management duties t wrk in Philadelphia area: Wage 3 level fr Sftware Engineer ( ): $76 K Wage 3 level fr Engineering manager ( ): $111 K Wage 3 level fr Cmputer Prgrammer ( ): $66 K 1 Written by Jane W. Gldblum. Jane, wh has limited since 1980 her practice t immigratin, natinality and cnsular law and, especially emplyment-based immigratin law, is listed in the June 2004 and in the June 2005 issue f Philadelphia Magazine as ne f the tp immigratin attrneys in Pennsylvania ( and is listed in the 2005 publicatin Best Lawyers in America as ne f America s best immigratin lawyers ( 1

2 Hw d yu btain an Occupatinal Cde?: G t and research the varius ccupatins until yu find O*Net ccupatin and cde yu deem apprpriate 3. Research the Wage Levels f the relevant O*NET psitin and cde. a. What is the Imprtance f Obtaining the Apprpriate OES WAGE LEVEL? i. Fr PW purpses: Yu want a wage that the Emplyer is willing and able t pay ii. Fr PERM applicatin purpses: The level can be especially imprtant if alien acquired all his wrk experience with same emplyer and yu NEED t distinguish his entry psitin frm his current psitin. a. Using different O*NET Cdes: when cmpleting the PERM applicatin, the practitiner shuld, when pssible, list separately entrylevel psitin (shrt rder ck and the O*Net cde fr same) and current psitin (Head Chef and the O Net cde fr same). b. If psitins d nt have different O*Net cdes, then use Wage Level descriptrs in PERM Applicatin (see belw). b. Hw d yu btain the apprpriate OES Wage Level fr Prevailing Wage Purpses? Refer t descriptrs in Plicy Guidance as a way t justify particular level. In distinguishing psitins in PERM Applicatin, als use descriptrs. 1. Level 1: Entry [Descriptrs: wrks under supervisin; perfrms rutine tasks; receives specific instructin; is clsely mnitred; has basis understanding & limited exercise f judgment. Example: Intern] 2. Level 2: Qualified [Descriptrs: perfrms mderately cmplex tasks that require limited judgment; has gd understanding f jb attained thru educatin r experience] 3. Level 3: Experienced [Descriptrs: exercises judgment; has supervisry duties; experienced with sund understanding f ccupatin with special skills r knwledge. Example: Senir Prgrammer] 4. Level 4: Fully cmpetent [Descriptrs: wrk requires judgment and independent evaluatin; uses advanced skills and diverse knwledge t slve unusual and cmplex prblem. Usually wrk is (nly) reviewed by senir management; managerial/supervisry respnsibilities 4. Describe the jb duties and draft a detailed psitin descriptin a. Practitiners shuld refer t the O*NET Summary Reprt f the relevant O*NET psitin b. The Imprtance f referencing the O*NET SUMMARY REPORT: The Practitiner shuld btain a Summary Reprt fr the ccupatin (via This Summary Reprt cntains the fllwing infrmatin: Tasks, Tls & Technlgy, Knwledge, Skills, Abilities, Wrk Styles, Jb Zne, Related Occupatins, Wages & Emplyment. When drafting the ccupatinal descriptin in bth the PW and PERM applicatin, try t make cnsistent with the descriptin in tasks, tls & technlgy and wrk styles. When drafting the ccupatin s requirements (educatin, experience) make sure they are cnsistent with Jb Zne (see belw) and, thus, nrmal. Use the Summary Reprt t cmplete Step 1 n the WS. 5. Refer t the Jb Zne in the O*NET Summary Reprt, t be apprised f DOL s parameters. These include the designated Jb Zne (e.g. Jb Zne 1, 2, 3, 4 r 5), required experience, SVP range and applicable educatin. a. The Imprtance f the JOB ZONE: The Practitiner shuld refer t the Occupatin s Jb Zne when cmpleting the PW Frm and, later, the PERM applicatin t ensure requirements are cnsistent and, yes, nrmal. An ccupatin is classified in Jb Znes One thrugh Five. By way f example, Jb Zne Fur (the Jb Zne fr many prfessinal psitins), cntains the fllwing infrmatin: 2

3 i. Title: Jb Zne Fur: Cnsiderable Preparatin Needed ii. Overall Experience: A minimum f 2 t 4 years f wrk-related skill, knwledge r experience is needed fr these ccupatins. Fr example, an accuntant must cmplete 4 years f cllege and wrk fr several years t be cnsidered qualified iii. Jb Training: Emplyees need several years f wrk-related experience, n-the-jb training, and/r vcatinal training. iv. Jb Zne Examples: Many f these ccupatins invlve crdinating, supervising, managing, r training thers. Examples include accuntants, cmputer prgrammers, teachers, chemists v. Educatin: Mst f these ccupatins require a 4 year bachelr s degree, but sme d nt. vi. SVP Range 7.0 t less than 8.0. This is interpreted t be ver 2 years t perhaps as high as 10 years. See #6 belw. Other Jb Znes Jb Zne One little r n preparatin needed (SVP belw 4.0). Example: waiters Jb Zne Tw sme preparatin needed (SVP Range: 4.0 t less than 6.0). Example: tellers Jb Zne Three medium preparatin needed (SVP Range: 6.0 t less than 7.0). Example: legal secretaries Jb Zne Five extensive preparatin needed (SVP Range: 8.0 and abve). Example: aerspace engineers b. The Imprtance f the Occupatin s SVP: All ccupatins are accrded an SVP (that signifies the nrmal educatin & experience fr the ccupatin). Nte: hwever, SVP is different fr determining Wage Level n Prevailing Wage WS (where ONLY experience is cnsidered) and fr determining if requirements are nrmal fr PERM applicatin purpses (where bth experience and educatin are cnsidered). i. SVPS fr skilled thrugh highly prfessinal psitins: a. SVP 6: ver 1 year up t and including 2 years b. SVP 7: ver 2 years up t and including 4 years c. SVP 8: ver 4 years up t and including 10 years d. SVP 9: ver 10 years ii. Interpreting the SVP: Hw t equate educatin t years f experience: a. General Assciate s (AA) degree 0 years b. Specific Assciate s (AA) degree 2 years c. Baccalaureate (BA/BS) degree 2 years d. Master s (MS) degree 4 years e. Dctrate (PhD) degree 7 years (2+2+3) 6. Identify the Apprpriate Wage Level, using the Wrksheet fr Use in Determining OES Wage Level (WS). Under Step 1, Requirements, a 1 is autmatically placed under the Wage Level Result. Under Step 2, Experience, Need SVP f the psitin (Refer t Appendix E) - Fr ccupatins in Jb Znes 2 thrugh 5, if emplyer s experience requirement is: At r belw the level f experience and SVP range: enter 0 In the lw end f the experience and SVP range: enter 1 In the high end f the experience and SVP range: enter 2 Greater than the experience and SVP range: enter 3 3

4 NOTE: Pints shuld be added fr the amunt f experience nly if the required wrk experience is abve the starting pint f the O*NET jb zne range. Years f required educatin shuld NOT be cnsidered in Step 2. Imprtance f SVP: if Emplyer s requirements exceed SVP, Emplyer must indicate in its PERM Applicatin at Item H.12 that the requirements are NOT nrmal fr the ccupatin. Example: If Emplyer requires a Master s Degree and 3 years f experience fr psitin that has SVP f 7; then, Emplyer s requirements [which equal 7 years 4 years allcated t educatin and 3 years f experience] exceed the psitin s SVP. a. Under Step 3, Educatin, check the emplyer s degree requirement fr this psitin with the Educatinal & Training CODES fr PROFESSIONAL Occupatins in Appendix D. Appendix D lists prfessinal ccupatins & gives each a cde: Cde ONE: First Prfessinal Degree Cde TWO: Dctral Degree Cde THREE: Master s Cde FOUR: Wrk Experience PLUS Bachelr s r Higher Degree Cde FIVE: Bachelr s [cmpletin f prgram requires at least 4 but nt mre than 5 years f academic wrk] Per Plicy Guidance and referring t prfessinal ccupatins (Appendix D): If the educatin required is equal t r less than the usual educatin: n entry If the educatin required is mre than the usual educatin by ne categry: enter a 1; If the educatin required is mre than the usual educatin by OVER ne categry, enter a 2; Example: If the ccupatin generally requires a Bachelr s degree and the emplyer s jb ffer requires a Master s degree, enter a 1; if the jb ffer requires a Ph.D., enter a 2. Fr all ther ccupatins, use the educatin level fr what mst f these ccupatins require r these ccupatins usually require described in the O*NET Jb Zne fr that ccupatin. Under Step 4, determine if there are any special skills. If the specific skills required fr the jb are generally encmpassed by the O*NET descriptin fr the psitin, n pint shuld be added. A freign language requirement is cnsidered a special skill, and thus a 1 shuld be entered. Under Step 5, determine if there are supervisry duties. If the jb requires the supervisin f at least ne emplyee, enter a 1. Hwever, if supervisin is a custmary duty fr the O*NET ccupatin (e.g., First-line Supervisrs/Managers ccupatins), d nt enter a The imprtance f the PW Request submissin: by submitting, as this authr recmmends, bth a PW Request Frm and a ONE-Page attachment justifying the ccupatinal cde, wage level, wage and requirements---yu have set up yur PERM applicatin fr apprval. Example f Attachment/Justificatin is attached. 4

5 EXAMPLE FOR COMPLETING THE WORK SHEET (Appendix C) HYPOTHETICAL: Emplyer s requires Master s plus 3 years f experience fr a Senir Prgrammer O*NET Requirements: Jb Zne Fur-thus, SVP: 7<8 [2 t perhaps 10 yrs]; Educatin: mst require bachelr s but sme d nt ; Experience: minimum 2-4 years; Prfessinal Cde (Appendix D): Five (bachelr s) Step 1: Determining Requirements. First yu review Emplyer s requirements (tasks, skills, etc) and cmpare with O*NET Summary Reprt (including Jb Zne), Plicy Guidance re Wage Levels, etc. When cmpleting WS, n matter what requirements, autmatically put 1 S, why d we lk at O*Net Summary Reprt and Jb Zne? Basically, it is t help us cmplete PERM applicatin t make sure cnsistent and t prve requirements are NORMAL. Step 2: Determining EXPERIENCE. Review Emplyer s experience requirement and cmpare with JOB ZONE s SVP. Remember yu just lk at experience (NOT educatin!) Yes, different standard fr PW versus determining if requirements are nrmal fr PERM applicatin purpses. Emplyer wants 3 years f experience fr Senir Prgrammer SVP fr Prgrammer is 7 t less than 8 [interpreted: ver 2 years t perhaps as high as 10 years] Here, required experience f 3 years wuld be lw end f SVP. Thus, n WS, enter a 1. Step 3: Determining EDUCATION. First yu determine Emplyer s requirements and THEN, if psitin is a PROFESSIONAL psitin (ne that generally requires a bachelr s degree), yu g t Guidance s Appendix D which lists Educatin CODES by ONET cde and gives a number (1-5) The Emplyer is asking fr a Master s Degree Per Appendix D, the cde fr a Prgrammer is 5 The Guidance tells us that cde 5 is USUALLY fr bachelr degreed psitins Per Guidance, required educatin is 1 level abve the USUAL educatin. Thus, n WS, enter a 1. Step 4: Determining if SPECIAL SKILLS. Again lk at guidance & FAQ Here, Emplyer is NOT asking fr anything special Thus, n WS, enter a 0. Step 5: Determining is SUPERVISORY duties Here, Emplyer is NOT asking fr supervisry duties that are utside the scpe f the senir psitin Thus, n WS, enter a 0. Adding up pints (R, Exp, Ed), yu get Wage Level 3 (experienced) Cmpare what Emplyer wants versus descriptrs f Wage Level 3 per Plicy Guidance, e.g., Experience with SOUND understanding f ccupatin; able t exercise judgment, may have supervisry duties; psitin can have title: senir Cmpare Emplyer s Wage with O NET Wage Emplyer s ffer: $62,000 Wage Level 3 fr Cmputer Prgrammer (Philadelphia): $66,000+ 5

6 Addendum t Request fr Prevailing Wage Determinatin Describe FULLY the jb duties t be perfrmed and/r attach the jb descriptin Oversees and manages prjects making key decisins cncerning cding, interfacing and methds fr data acquisitin. Analyzes client's technlgical requirements and independently designs and writes cde t meet specific needs. Respnsible fr reflex paging-based data acquisitin prjects. Prficiency required with varius Operating Systems and prgramming languages including: DOS, all Windws versins, QB, VB, C, C++, VC, 8X86 assembly. Experience required in image and gesture recgnitin and prtcls including RS-232, SPI, TCP/IP. Cdes cmplex recursive algrithms fr near real time. Familiarity w/ A/D & D/A hardware required. Writes, tests, & maintains ASM Cde fr micrprcessr-based real-time acquisitin systems. Indicate wage level f the Jb and prvide justificatin: The wage level fr the psitin f Senir Prgrammer shuld be classified as a Wage Level 3 ccupatin within the O*Net classificatin fr Cmputer Prgrammers ( ). Wage Level 3 matches the psitin f Senir Prgrammer as the psitin requires a sund understanding f the ccupatin. The Senir Prgrammer psitin requires three years f experience, cmmensurate with the level f prficiency needed with the varius tasks assciated with this jb. In additin, the psitin warrants the ability t perfrm cmplex tasks and t exercise independent judgment This psitin requires a master s degree in Cmputer Science r a related field. In additin, in utilizing the Appendix C: Wrksheet fr Use in Determining OES Wage Level, further evidence is prvided that the psitin shuld be classified as a Wage Level 3 ccupatin. Autmatic additin f 1 pint fr requirements. The three year experience requirement falls in the lw range f the Jb Zne and SVP range with what is nrmally assciated with the psitin f Cmputer Prgrammers ( ) as indicated in the OES Wage Determinatin and O*NET descriptin. (1 pint) The educatinal requirement f a master s degree in cmputer science is ne step abve the bachelr s degree requirement set frth in Appendix D f the Department f Labr s Plicy Guidance f May 9, (1 pint) There are n special skills r freign language requirements, nr are there licensure/certificatin requirements. (0 pints) There are n supervisry duties assciated with this psitin. (0 pints). Adding up these pint ttals accrding t the frmula utilized in Appendix C, the psitin f Senir Prgrammer at falls squarely within Wage Level 3 f the O*Net categry fr Cmputer Prgrammers ( ) fr prevailing wage purpses.