Resources for 8-18-11 Seminar - AILA webCLE

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Below are recent decisions from BALCA involving prevailing wage 

determinations. All cases can be found on InfoNet. AILA document 

numbers are below. 

The court held that 20 CFR 656.40(c) does not require that the employer’s first 

recruitment step begin during the validity period of the prevailing wage determination, 

only that some recruitment step be initiated during that time. (Matter of Horizon 

Computer, 5/25/11) AILA Doc. No. 11060962 

BALCA held that where the employer receives more than one prevailing wage 

determination based on variations of the minimum job requirements (primary and 

alternative), the employer must abide by the higher wage. (Matter of Take Solutions, 

4/28/11) AILA Doc. No. 11042966. 

BALCA refused to apply Superior Landscape to round up the wage on the NOF that was 

99.51% of the prevailing wage. ALJ Vittone concurred, but noted that the CO has the 

discretion to take a reasonable approach in cases like this. (Matter of Baily Int’l., 4/19/11) 

AILA Doc. No. 11042030. 

Where the employer lost the original prevailing wage determination, BALCA concluded 

that a new PWD obtained outside the applicable time period does not cure the error of 

failure to retain documentation under 20 CFR §656.10(f). (Matter of Apollo Consulting, 

1/12/11) AILA Doc. No. 11011335 

The “offered wage” is the wage offered to the alien at the time the ETA 9089 is filed. 

BALCA rejected the argument that the NOF was sufficient where the employer raised the 

wage after posting to a rate above the NOF range. (Matter of O’Brien & Van Stiphout, 

1/3/11) AILA Doc. No. 11010631 

BALCA rejected the argument that the DOL FAQs create the impression that the Notice 

of Filing need only include the prevailing wage, and affirmed the CO’s denial where the 

NOF contained a wage less than that offered to the alien. (Matter of Alum-A-Lift, 1/3/11) 

AILA Doc. No. 11010670 

BALCA found that the employer failed to comply with 20 CFR §656.40(c), where it filed 

the application after the prevailing wage expired, but failed to commence recruitment 

during the prevailing wage validity period. (Matter of Quadrille Wallpapers, 12/15/10) 

AILA Doc. No. 10122060. 

BALCA affirmed the CO’s denial, finding employer’s advertisements listing requirement 

of background check were less favorable than conditions listed in the ETA 9089, which 

did not list the requirement. Matter of Noll Pallet & Lumber Co., 2009-PER-00082 

(12/16/09). AILA Doc. No. 10030362. 

2011 AILA Teleconference/Web Conference 

© 2011 American Immigration Lawyers Association

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BALCA affirmed the CO’s denial, where the low end of the wage range stated in the 

State Workforce Agency (SWA) job order was below the prevailing wage determination. 

Matter of Marcel Cleaners Inc., 2009-PER-00395 (02/16/10). AILA Doc. No. 10030268. 



OMB Approval: 1205-0466 

Expiration Date: 11/30/2011 

Application for Prevailing Wage Determination 

ETA Form 9141 

U.S. Department of Labor 

Please read and review the instructions carefully before completing this form and print legibly. A copy of the instructions can be 

found at http://www.foreignlaborcert.doleta.gov/. 

A. Employment-Based Visa Information 

1. Indicate the type of visa classification supported by this application (Write classification symbol): * 

B. Requestor Point-of-Contact Information 

1. Contact’s last (family) name * 2. First (given) name * 3. Middle name(s) * 

4. Contact’s job title * 

5. Address 1 * 

6. Address 2 

7. City * 8. State * 9. Postal code * 

10. Country * 11. Province 

12. Telephone number * 13. Extension 14. Fax Number 

15. E-Mail Address 

C. Employer Information 

1. Legal business name * 

2. Trade name/Doing Business As (DBA), if applicable § 

3. Address 1 * 

4. Address 2 

5. City * 6. State * 7. Postal code * 

8. Country * 9. Province 

10. Telephone number * 11. Extension 

12. Federal Employer Identification Number (FEIN from IRS) * 13. NAICS code (must be at least 4-digits) * 

D. Job Offer Information 

a. Job Description: 

1. Job Title * 

2. Suggested SOC (ONET/OES) code * 2a. Suggested SOC (ONET/OES) occupation title * 

ETA Form 9141 FOR DEPARTMENT OF LABOR USE ONLY Page 1 of 4 

PW Tracking Number:___________________ Case Status: __________________ Validity Period: ______________ to _______________




ETA Form 9141 


a. Job Description (continued) 

3. Number of hours of work per week * 

3a. Hourly Work Schedule * 

Basic: _______ 

Overtime*: _______ 

A.M. (h:mm): ___ : ____ 

P.M. (h:mm): ___ : ____ 

4. Job Title of Supervisor for the Workers (if applicable) § 

5. Does this position supervise the work of other employees? * 

Yes No 

5a. If yes, number of employees worker § 

will supervise (if applicable) _______ 

6. Job duties – A description of the job duties to be performed MUST begin in this space. If necessary, add attachment 

to continue and complete description. * 

7. Will travel be required in order to 

perform the job duties? * 

7a. If “Yes”, please explain the travel requirements: § 

Yes 

No 

8. Are there any other working 

conditions that affect the rate of pay? * 

8a. If “Yes”, please specify the working conditions. § 

Yes 

No 






ETA Form 9141 


b. Minimum Job Requirements: 

1. Education: minimum U.S. diploma/degree required * 

None High School/GED Associate’s Bachelor’s Master's Doctorate (PhD) Other degree (JD, MD, etc.) 

1a. If “Other degree” in question 1, specify the diploma/ 

degree required § 

1b. Indicate the major(s) and/or field(s) of study required § 

(May list more than one related major and more than one field) 

2. Does the employer require a second U.S. diploma/degree? * Yes No 

2a. If “Yes” in question 2, indicate the second U.S. diploma/degree and the major(s) and/or field(s) of study required § 

3. Is training for the job opportunity required? * Yes No 

3a. If “Yes” in question 3, specify the number of 

months of training required § 

3b. Indicate the field(s)/name(s) of training required § 

(May list more than one related field and more than one type) 

4. Is employment experience required? * Yes No 

4a. If “Yes” in question 4, specify the number of 

4b. Indicate the occupation required § 

months of experience required § 

5. Special Requirements - List specific skills, licenses/certificates/certifications, and requirements of the 

job opportunity. * 

c. Place of Employment Information: 

1. Worksite address 1 * 

2. Address 2 

3. City * 4. County * 

5. State/District/Territory * 6. Postal code * 

7. Will work be performed in multiple worksites within an area of intended 

employment or a location(s) other than the address listed above? * 

Yes No 

7a. If Yes in question 7, identify the geographic place(s) of employment with as much specificity as possible. If necessary, 

submit an attachment to continue and complete a listing of all anticipated worksites. § 






ETA Form 9141 


E. Prevailing Wage Determination 

FOR OFFICIAL GOVERNMENT USE ONLY 

1. PW tracking number 2. Date PW request received 

3. SOC (ONET/OES) code 3a. SOC (ONET/OES) occupation title 

4. Prevailing wage 4a. Wage level 

$ __________ . ____ 

I II III IV N/A 

5. Per: (Choose only one) 

Hour Week Bi-Weekly Month Year Piece Rate 

5a. If Piece Rate is indicated in question 2, specify the wage offer requirements :* 

6. Prevailing wage source (Choose only one) 

OES CBA DBA SCA Other/Alternate Survey 

6a. If “Other/Alternate Survey” in question 6, specify 

7. Additional Notes Regarding Wage Determination 

8. Determination date 9. Expiration date 

F. OMB Paperwork Reduction Act (1205-0466) 

k 

Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Respondent’s 

reply to these reporting requirements is mandatory to obtain the benefits of temporary employment certification (Immigration and Nationality 

Act, Section 101). Public reporting burden for this collection of information is estimated to average 55 minutes per response, including the 

time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing 

the collection of information. Send comments regarding this burden estimate to the Office of Foreign Labor Certification * U.S. Department 

of Labor * Room C4312 * 200 Constitution Ave., NW * Washington, DC * 20210. Do NOT send the completed application to this 

address. 



Worksheet for Use in Determining OES Wage Level 

Employer's Job Title: 

Rose Immigration Law Firm, PLC 

615 321 2256 -- roseimmigration.com 

O-NET Title: 

Date: 

O-NET Code: 

Reviewer: 

Indicator 

Job Offer 

Requirements 

O-NET Usual 

Requirements 

Comments 

Wage Level Result 

Step 1. Requirements 

SVP=____ Range= 

1 

Step 2. Experience 

Step 3. Education 

Step 4. Special Skills 

and Other 

Requirements? (Y/N) 

Step 5. Supervisory 

Duties (Y/N) 

Sum: 

Experience -- Compare 

to SVP range. At or 

below, enter 0. Low 

end, enter 1. High end, 

enter 2, Exceed SVP, 

enter 3. 

Education -- For 

professionals, look to 

Code on appendix D. If 

employer's degree is 

equal to or below Code, 

enter 0. Add one level 

point for each degree in 

excess of Code. If nonprofessional, 

look to 

Onet job description. 

Enter level point for each 

degree in excess of what 

"most employer's 

require" or what is 

"usually required."

Creative Strategies for Prevailing Wage Determination 

(LCA/PERM) 

August 18, 2011 

Additional Resources 

I-Cert 

http://icert.doleta.gov 

November 2009 Prevailing Wage Guidance 

http://www.aila.org/content/default.aspx?docid=30889 [AILA Doc. No. 10010468] 

DOL PERM FAQ’s Round 1-10: 

http://www.foreignlaborcert.doleta.gov/perm.cfm 

DOL PERM FAQ Round 11: 


DOL PERM FAQ Round 12: 


DOL Prevailing Wage FAQ’s: 

http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#prevailingwage 

DOL ETA Prevailing Wage Determination Guidance, November 2009 


Liaison Activity and Stakeholder Minutes 

http://www.aila.org/content/default.aspx?docid=6747 

H-2B Supplemental Prevailing Wage Determination FAQ’s 

http://www.aila.org/content/default.aspx?docid=36636 [AILA Doc. No. 11081661] 

Decisions of the Board of Alien Labor Certification Appeals (BALCA). 

http://www.aila.org/content/default.aspx?docid=9511 

OES Description for Instructional Coordinators 

http://www.onetonline.org/link/summary/25-9031.00

Resources for 8-18-11 Seminar - AILA webCLE

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