DOL on the Rejection of Labor Condition Application
From: ORMOUT, ORMETA
To: region__admin
co: mgr, ormout, powellk, acuco:orim
Subj: Rejection of LCA Applications
February 21, 1995
Memorandum For All Regional Administrators
From: Barbara Ann Farmer
Administrator for
Regional Management
Subject: Rejection of Labor Condition Applications Based Upon the Listed Source of Prevailing Wage Data
As expected, the question of whether we do or do not reject a labor condition application based upon what an employer lists as the source of prevailing wage information and confusion among attorney and employer groups. As a result, we herewith provide the following guidance and a few examples of acceptable versus unacceptable sources.
Section ___.730 (c) (1) (vi) of the Department's regulations governing the H-1B program requires that the employer list the following at itme 7(e) of the labor condition application:
"[t]he prevailing wage for the occupation in the area of intended employment and the specific source (e.g., name of published survey) relied upon by the employer to determine the wage."
The sole questions for reviewers of labor condition applications should be: Did the employer list the prevailing wage and its source? Is the listed source specific (i.e., a proper name or entity)? We should not be looking behind the listed source. As long as it is specific it generally is not "obviously inaccurate." Issues such as the geographic scope of the survey, whether the survey was cross industry, or whether the survey uses a weighted mean, are beyond the scope of our inquiry in making a determination as to whether to accept or reject a labor condition application.
A few examples of what generally would be acceptable versus unacceptable sources:
Acceptable:
"Employer's survey:"Bureau of Labor Statistics" ("BLS")
"6 similar employers in California"
"National Association of Manufacturers"
The name of the firm or corporation filing the application
Unacceptable (not specific enough):
"Market data"
"Internal data"
"Industry standards"
"Statistical data"
"Published survey"