E9-28963. Prevailing Wage Determinations for Use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and Permanent Labor Certification Programs; Prevailing Wage Determinations for Use in the Commonwealth of the Northern Mariana Islands

AGENCY:

Employment and Training Administration, Department of Labor.

ACTION:

Notice.

SUMMARY:

The Department of Labor (Department) is providing notice that, in accordance with its labor certification regulations, as of January 1, 2010, the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. In addition, the Department is providing guidance about the implementation of the issuance of PWDs for applications in the Commonwealth of the Northern Mariana Islands (CNMI).

DATES:

This Notice is effective November 28, 2009, for PWD requests for job opportunities in the Commonwealth of the Northern Mariana Islands; and January 1, 2010, for all other PWD requests.

ADDRESSES:

None.

FOR FURTHER INFORMATION CONTACT:

William L. Carlson, Administrator, Office of Foreign Labor Certification, U.S. Department of Labor, 200 Constitution Avenue, NW., Room C-4312, Washington, DC 20210; telephone: [phone] (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration's (ETA) appropriate National Processing Center (NPC)—which was designated as the Chicago NPC in the preamble to the Final Rule. Beginning on January 1, 2010, the Final Rule also federalized PWD for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, E-3 (Australia), and the permanent labor certification programs.

Effective on January 1, 2010, the processing of all PWD requests for the above-referenced labor certification programs will be centralized in OFLC's NPWHC in Washington, DC. The NPWHC will receive and process PWD requests in accordance with the applicable regulations and Department guidance. The one exception to this is PWD requests for CNMI; the NPWHC will begin receiving and processing those effective November 28, 2009.

The CNMI is an unincorporated territory of the United States (U.S.) whose relationship with the U.S. is governed by the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Public Law 94-241, 90 Stat. 263 (1976), as amended (Covenant). The Covenant was recently modified by Congress in Title VII of the Consolidated Natural Resources Act, Public Law 110-229, Title VII, Subtitle A, 122 Stat. 754, 853 (2008) (CNRA). The CNRA applies the Immigration and Nationality Act (INA) and other U.S. immigration laws to the CNMI beginning on November 28, 2009, with a transition period that will end on December 31, 2014, unless certain provisions are extended by the Department.

The CNMI Department of Labor, as of November 28, would normally be charged with the issuance of PWDs under the various regulations governing such determinations. Since there is very little time between November 28, 2009, and January 1, 2010, the Department has determined it is more feasible for the Department to receive such requests directly rather than have the CNMI receive and process such requests. All requests for a PWD for a job opportunity on CNMI made in connection with a potential filing in a labor certification program must be made in the manner described in “Filing Procedures,” below.

Regulations

All employers submitting PWD requests and related actions must follow the prevailing wage requirements set forth in 20 CFR 655.10, 655.11, 655.731, 655.1112, 656.40 and 656.41, as applicable.

Filing Procedures

a. PWD Requests

1. Requestors must submit PWD requests using the Application for Prevailing Wage Determination, Form ETA-9141.

2. Requestors must submit PWD requests to the NPWHC by U.S. Mail or comparable physical delivery service at the following address: U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn: PWD Request; 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.

Note:

On and after November 28, 2009, for the CMNI and on and after January 1, 2010, the NPWHC will only process PWD requests received by mail in hard copy.

The Department is in the process of developing an electronic means for the submission of PWD requests and will publish a notice in the Federal Register informing the public when such a process becomes available.

3. Employer Provided Wage Documentation for H-1B, H-2B and Permanent Labor Certification Programs.

The NPWHC will consider wage information provided by the employer in making a PWD. Where not present in the survey submitted, an employer should provide the following information pertaining to its survey, except when McNamara-O'Hara Service Contract Act (SCA) or Davis Bacon Act (DBA) wages have been requested.

i. The name of the published survey, when appropriate;

ii. The publication schedule for the survey, when appropriate. This should include the publication date of the requested survey, the date of the previous version of the survey and the date of the next release of the survey (actual or anticipated);

iii. When the data was collected;

iv. A description of the job duties or activities used in the survey;

v. The methodology used in the survey;

A. How the universe is defined;

B. How the sample size was determined;

C. How the participants were selected; and

1. The number of employers surveyed for the occupation in the area;

2. The number of wage value responses (employees) for the occupation in the area;

D. A list of employer participants or explanation of how the cross industry nature of the survey was maintained;

E. How the presented wage was determined and if it is mean or median;

F. Any other appropriate information on the survey's methodology;

G. The area covered by the survey or relevant portion and an explanation of any expansion of the area beyond normal commuting distance, when applicable;

4. Employer-Provided Wage Documentation for SCA/DBA.

No employer-provided wage documents are initially required for SCA/DBA wage rate requests but NPWHC staff may require the requestor to submit additional documentation, if needed to make a PWD.

b. Redeterminations

All requests for prevailing wage redeterminations must be sent to the: U.S. Department of Labor-ETA; National Prevailing Wage and Helpdesk Center, Attn.: PW Redetermination, 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.

c. OFLC Review

Requests for OFLC review or PWD challenges must be mailed to the: U.S. Department of Labor-ETA; National Prevailing Wage and Helpdesk Center; Attn.: PWD Review, 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.

d. BALCA Review of PWDs

For all programs, requests for review by the Board of Alien Labor Certification Appeals (BALCA) must be in writing and must be made no more than 30 days after determination. Employers must send their requests for BALCA review to the following address: U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn.: PWD Appeal, 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.

e. State Workforce Agencies and Chicago NPC to Cease Processing PWD Requests Received on and After January 1, 2010

State Workforce Agencies (SWAs) and the Chicago NPC, where PWD requests are currently submitted, will complete any PWD requests received on or prior to December 31, 2009. The Chicago NPC or SWA will maintain responsibility for processing PWD requests and review requests (including all challenges and appeals) under 20 CFR 656.40 or 656.41 or 20 CFR 655.10 or 655.11, as appropriate, so long as the original PWD request was received on or prior to December 31, 2009.

Any PWD request, using the ETA Form 9141, received from January 1, 2010, up to and including January 15, 2010, will be forwarded by the SWA or the Chicago NPC to the NPWHC. Requests received after January 15, 2010, will be returned to the requestor with a cover letter that includes instructions on where to send the request and where to obtain a copy of the ETA-9141.

Signed in Washington, DC, this 25th day of November 2009.

Jane Oates,

Assistant Secretary, Employment and Training Administration.