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AILA Responds to DOL Proposed Rule

Cite as "AILA InfoNet Doc. No. 96062290 (posted Jun. 22, 1996)"

May 22, 1996

Assistant Secretary for Employment and Training
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room N-4456
Washington, DC 20210
Attn: John M. Robinson, Deputy Assistant Secretary

Re: Response to the proposed rule amending Department of Labor regulations regarding labor certification for permanent employ- ment of aliens; researchers employed by colleges and universities, published in 61 Fed. Reg. 17610 (April 22, 1996) [RIN 1205-A152]

Dear Sir:

In response to the Department of Labor proposed rule amending the regulation on labor certification for permanent employment of immigrant aliens in the United States, following are the comments of the American Immigration Lawyers Association (AILA), a voluntary bar association of approximately 4,000 lawyers and law professors practicing and teaching in the field of immigration and nationality law.

Our attorney members have extensive experience representing employer-petitioners in all industries, academic and institutional settings as well as immi- grant-beneficiaries in the permanent labor certifi- cation process. We are therefore in a unique posi- tion to provide information based upon collective experience regarding the potential impact of the proposed rule, as well as ways in which it might be improved.

We commend the Department for its proposed rule. We note the Department's acceptance of the distinguishing factors of academic researchers that provide unique challenges, as well as a stated will- ingness to examine additional situations, and en- courage such examination.

Attached are our comments to the proposed rule.

I. The proposed amendment makes no reference to its appli- cation to determination of prevailing wages for H-1B petitions.

        As an initial matter, the Supplementary Information to the proposed rule discusses in detail the applicability of the rule to the determination of prevailing wages for researchers employed by colleges and universities in petitions for H-1B status as well as in processing permanent labor certifica- tions. However, nowhere in the actual proposed regulations does it refer back to the regulations governing the prevailing wage determinations of H-1B labor condition applications (LCAs). The absence of any such reference will certainly cause confusion among the general public, as well as those re- sponsible for processing and providing prevailing wage deter- minations for professionals in the H-1B context. We suggest that a reference to 20 CFR § 656.730(e)(1)(ii)(C)(I) be made within the body of the rule in order to clarify its applica- bility to such determinations in the nonimmigrant context for purposes of consistency.

II. The Department should be narrowly interpreting the Hathaway decision, rather than seek to justify exceptions to it.

        AILA believes that the Department of Labor's implementa- tion of the Board of Alien Labor Certification Appeals' (BALCA's) decision in Matter of Hathaway Children's Services, 91-INA-388 (Feb. 4, 1994, en banc) is overly broad and incor- rect.

        The Department's acknowledgment of an exception for re- searchers at colleges and universities only underscores the distinctions between jobs where there is no distinction be- tween duties, responsibilities, and knowledge required, and professional occupations that are distinguishable by meaning- ful differences in working conditions, benefits, or other "nonpecuniary" factors. Rather than carving out an exception to Hathaway, the Department is admitting that its application of that decision is overly broad where there is justification for a separate wage system. This is not only true of academic researchers but also researchers in nonprofit settings. It is also true of other professional occupations where a separate wage system is clearly defined and widely accepted.

        Hathaway itself shows that it was a particularly inappro- priate vehicle for overturning DOL's previous practice of pro- viding (or accepting) separate prevailing wage determinations for professional occupations which have traditionally had separate wage scales.

        Hathaway involved a nonprofit facility and its applica- tion for labor certification on behalf of a maintenance worker. The position of maintenance worker is a lower- skilled, non-professional position, and one for which the na- ture of the employer would not affect job duties, benefits, or non-monetary rewards. A maintenance worker performs the same tasks, requiring the same skills, no matter whether the job is in a nonprofit setting or in private industry.

        By contrast, in many of the professions, positions within different industries or different types of employers do provide meaningful differences in working conditions or bene- fits. DOL recognizes this when, in the Supplementary Infor- mation to the proposed rule, it cites the "nonproprietary na- ture of academic research" and other "non-pecuniary factors" as bases for distinguishing scientific researchers in academic settings from their cousins in the private sector. Many Fed- eral district court decisions have also found similar distinc- tions, based on working condition and non-monetary benefits, for particular professional positions. See, e.g., Ratnayake v. Mack, 499 F. 2d 1207, 1213 8th Cir., 1974); Montessori Children's House v. Secretary of Labor, 443 F. Supp. 599, 608 (N.D. Tex., 1977); Golabaek v. Regional Manpower Administra- tion, 579 F. Supp. 892, 895-896 (E.D. Pa., 1971).

        All of the reasons put forth by the Department for estab- lishing that Hathaway will not apply to academic researchers only serves to emphasize that the Department should accept a more narrow interpretation of that decision. The Department finds that the factors contributing to its decision - includ- ing precedence of special treatment significant adverse impact on the academic community, and the nonproprietary nature of academic research - are what enable it to make the exception to the rule. Yet these factors themselves illustrate the need to consider the academic research community a separate wage system for researchers, acknowledging that there are employ- ment arenas which require a distinct classification for con- sideration of wages.

        Under section 212(a)(5) of the Immigration and National- ity Act, no alien seeking to enter the United States for the purpose of performing skilled or unskilled labor is admissible unless the Secretary of Labor has determined that: (1) there are not sufficient workers in the United States to fill that position, and (2) the employment of the alien will not ad- versely affect wages and working conditions of workers in the United States who are similarly employed. The regulations state that, in considering whether "[t]he employment of the alien will have an adverse effect upon the wages and working conditions of U.S. workers similarly employed," the Certifying Officer "shall consider such things as labor market informa- tion, the special circumstances of the industry, organization, and/or occupation, the prevailing wage in the area of intended employment, and the prevailing working conditions . . . in the occupation." 20 C.F.R.§656.24(b)(3).

        The primary purpose of the labor certification procedure is to protect the American labor market and to prevent the "adverse effect" on wages and working conditions which could result from the employment of foreign labor. One of the fac- tors in making an "adverse effect" determination is the pay- ment of the prevailing wage. Other factors listed in the regulations include working conditions and special circum- stances in the industry, organization, and/or occupation. See Ozbirman v. Regional Manpower Administration, 335 F. Supp. 467 (S.D.N.Y. 1971).

        The existence of a separate wage system has long been viewed as one of the "special circumstances" to be taken into consideration in making an "adverse impact" determination. Thus, in determining the prevailing wage under 20 C.F.R. § 656.40(a)(1), if the job opportunity is in an occupation which is subject to a wage determination under the Davis-Bacon Act, 40 U.S.C. §§ 276a et seq., 29 C.F.R. Part 1, or the McNamara- O'Hara Service Contract Act, 41 U.S.C. §§ 351 et seq., 29 C.F.R. Part 4, the prevailing wage is the rate required under the statutory determination. See Standard Drywall, 88-INA-99 (May 24, 1988) (en banc). Similarly, the regulations also provide, under 20 C.F.R. § 656.40(a)(2)(ii), that if the wage rate is set in a union contract, it will be considered the prevailing wage.

        The Department of Labor's own instructions for determin- ing the prevailing wage, contained in DOL Technical Assistance Guide (TAG) No. 656, Labor Certifications, 111 - 123, also recognize that separate wage systems can exist which have no adverse impact on the wages and working conditions of workers similarly employed. The fact that the Department did not view the examples cited in the regulations as exhaustive is evident from the discussion in the TAG of other sources of useful, prevailing wage surveys which could be employed by Certifying Officers in assessing whether the wages and working conditions of U.S. workers similarly employed were adversely impacted. Examples of relevant surveys listed in the TAG, at pages 120 - 121, are: Municipal Government Wage Surveys, the Coordinated Federal Wage System (CFWS), and the Nonappropriated Funds Pay System (NAF). Undoubtedly, the Department provided these surveys because it felt, as in the case of the NAF survey, that "these survey/wage schedules are important indicators of prevailing rates." (TAG, at page 121.)

        The regulations, Technical Assistance Guide, and federal court decisions recognize that there is no adverse impact on the wages of similarly employed workers where separate wage systems exist. In the Hathaway case, the employer failed to establish that a separate wage system existed for a mainte- nance repairer in a nonprofit setting.

        To take BALCA's decision in Hathaway and discard it for a specific community on the basis that a separate wage scale ex- ists is a step in the right direction. By examining the fac- tors that make academic researchers different from their coun- terparts in industrial or for-profit settings, the Department acknowledges that many factors contribute to the establishment of a separate wage system in the academic setting. By those principles, however, the academic community of researchers is not the sole beneficiary of an exception to Hathaway. Rather, any situation involving a clearly defined, separate wage scale, taking into consideration job duties, skill levels, and regional wage differentials should be outside the scope of that decision.

III. The Proposed Rule Should Apply to Research Institu- tions Regardless of Whether They are Affiliated with Col- leges and Universities.

        The applicability of the proposed rule only to academic research is unnecessarily limiting. The Department has re- quested comments on expansion of the rule to include federal research agencies and their affiliated nonprofit research in- stitutions engaged in basic research which employ postdoctoral fellows and visiting scientists in a manner similar to col- leges and universities. AILA encourages the Department to ex- pand coverage of the rule to those classes of research insti- tutions, and to include in coverage other nonprofit research institutions which may not be "affiliated" with federal re- search agencies.

        A basis for expanding the coverage of the rule to include a broader class of researchers may be found in the expressions of Congressional intent related to the enactment of INA Sec- tion 203(b)(1)(A), governing aliens of extraordinary ability, and INA Section 203(b)(1)(B), governing outstanding professors and researchers, as well as INA Section 203(b)(2)(B), govern- ing aliens of exceptional ability or advanced-degree profes- sionals for whom admission to the United States without job offer, and hence, labor certification, is in the national in- terest.

        Legislative history related to these provisions shows that Congress wished to enhance the ability of the United States to attract and retain leading research talent. Con- gress expressly noted that the enactment of the Priority Worker classification was to serve the national interest by enhancing the "ability of such workers to enter the U.S. promptly." See H.R. Rept. No. 101-723, part 1, 101st Cong., 2nd Sess. 59 (September 19, 1990), U.S. Code, Cong. & Admin. News 1990, p. 6710, accompanying H.R.4300, at p. 59. Congress also noted that those provisions were "similar to classifications under existing law that exempt certain occupations from labor certification through the use of Department of Labor sched- ules." Ibid.

        It is important to note that Congress did not limit availability of classification in any of these categories to those who would be working only in academic research. In fact, it is important to note that Congress specifically pro- vided that an outstanding researcher could be employed in in- dustrial, private-sector research if the petitioning employer employed three or more researchers full-time and had a docu- mented record of research accomplishments. See INA § 203 (b) (1) (B).

        Not all basic research is conducted in academic research centers. By limiting coverage of the proposed rule to aca- demic research, the Department is acting contrary to broader concerns of Congress. Non-academic research centers conduct research for public dissemination. For example, the Sloan- Kettering Cancer Center and the Mayo Clinic are "stand-alone" non-affiliated and nonprofit institutions. Each operates sub- stantial research centers, and each is in the leadership in biomedical research. Neither would be covered by the proposed rule. Similarly, state and federal research centers, such as the National Institutes of Health or the National Science Foundation, not affiliated with academic institutions, would not be covered by the proposed rule.

        Salaries in research in the nonprofit sector as well as in academic settings are often governed by, and are limited by, provisions in grants. In addition, salaries in all pub- lic-sector research are frequently governed by statute or regulation. Not infrequently, salary limits in grants and salaries mandated by statute or regulation fall below salaries in the private sector. Additionally, many do not permit wage supplements. Institutions employing researchers subject to such limitations will be unable to engage the services of re- searchers where salaries are based upon comparisons with pri- vate-sector research enterprises. Accordingly, such institu- tions, no matter their affiliation, are just as adversely im- pacted by Hathaway and should be included in the proposed rule.

IV. The rule should take into account disparities in wages among disciplines.

        There is no express provision in the rule to permit con- sideration of disparities in wages among disciplines. If, for example, wage determinations are based solely upon title Re- searcher (199.276-034), then wages for researchers in dispa- rate fields will be included in wage determination surveys. Wages for researchers in many field in the sciences are far greater than those in fields such as anthropology, sociology and political science. By failing to provide for distinctions among disciplines, the rule fails to account for disparate wage scales among researchers. This disparity will exist whether the research is being conducted in an academic set- ting, or in the nonprofit sector or public sector.

V. Conclusion.

        AILA welcomes this opportunity to respond to the proposed regulations and welcomes the opportunity to discuss with the Department any of the concerns raised in this comment.

Submitted by,

Committee on Outstanding Professors and Researchers

Michelle L. Lazerow, co-chair
Robert S. Whitehill, co-chair
Steven A. Clark
Robert P. Deasy
David Stanton
Elissa M. McGovern


Assistant Secretary for Employment and Training
May 22, 1996
Page 3

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