Issue: Where an Employer receives two different PWDs based on its primary and alternative minimum requirements, which PWD must the employer use?

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Programmer Analyst.”

The Employer listed the minimum requirements as a Bachelors degree plus 5 years of experience in the position offered, or in the alternative, a Masters degree plus 1 year of experience in the job offered. The prevailing wage for the position listed in the application was $34.67 per hour. After receiving the Employer’s Application, the CO issued an Audit Notification. The CO denied certification citing that the PWD listed on the application was different from that provided in the Audit response. The audit response provided a PWD of $46.16 per hour. The Employer requested reconsideration and provided the PWD consistent with the wage listed on the labor application. The $34.67 per hour wage was based upon a separate PWD containing the primary requirements of Bachelors degree plus 5 years experience; and the $46.16 per hour wage was based upon another PWD containing the alternative requirements of a Masters degree plus 1 year experience. The CO denied reconsideration providing that the PWD submitted in the audit response did not match the prevailing wage listed in the labor application. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on August 3, 2010.

PERM regulation 20 C.F.R. § 656.1(a)(2) controls and provides that labor certification can only be granted if the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers who are similarly employed.

In the instant case, the facts present a clear example of how certification of the foreign worker could have an adverse effect on the wages of U.S. workers. The foreign worker has a Bachelors degree plus 5 years of experience and ought to be paid the amount that similarly situated U.S. employees earn in this position in the same area of intended employment, $46.16 per hour. Here, employment of the foreign worker could have an adverse effect on the wages of U.S. workers similarly employed that have a Bachelors degree plus 5 years of experience, since the Employer is only offering $34.67 per hour for this position. Accordingly, the proper PWD in such a situation is not the PWD that matches the “primary” or “alternative” job requirements; rather, the proper PWD is the higher of the two PWDs.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.