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Listserv Q&A for "Labor Certification with Joel Stewart"

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Question:

Excellent seminar. My question is as follows: I noticed that the OES lists a Programmer under a Job Zone level of "4" which is an SVP 7 < 8, yet lists Programmer-Analyst and Systems-Analyst as Job Zone level "3" which is SVP 6 < 7. It seems rather capricious and certainly inconsistent. Is DOL now saying that DOT is irrelevant? If so, is there any explanation for why the analyst positions are relegated to such a low SVP? Also, what possible remedies are there for getting the OES changed in this respect? Is the only option to advocate at the time of filing a PW that the positions are more appropriately Software Engineer positions? Or will business necessity letters be required if an employer seeks more than a BS +2?

Answer by Joel Stewart:

The DOT has substantial inconsistencies based on the use of the OES instead of the DOT. The regulations REQUIRE the DOL to use the DOT, not the OES. Therefore, all determinations of job requirements continue to be made under the DOT. Only the wages (which have no regulatory requirements as to specific sources) have switched to OES. That too is controversial, and may be changing, inasmuch as the DOL is inviting employers to use their own surveys and easing up the requirements. The GAL 2-98 removed the requirement that employers prove the CO's survey is wrong; you need only prove that your survey meets the 7 criteria. Therefore, you should need no business necessity to meet the DOT version of the SVP. Caveat: In changing times, it is good to reinforce your position at each step. I suggest you submit a brief memo outlining what I have just stated, especially if the SESA tells you that the job requirements are determined by the OES. There is a learning curve and time gap between the Central Office, the CO's and the SESA's. Each level is not responsive to the other, and it takes a long time for the "correct" policy to filter down from the top to the rank and file SESA personnel. It is my own personal opinion that some of the SESAs deliberately disseminate incorrect information, as they prefer to make the process more restrictive and difficult for the Employers. You also have to be ready to withstand a challenge on the job itself. If you maintain your minimum requirements are legal because they correspond to the DOT (and they are), intrinsic in your argument is to convince the DOL that the whole case is meritorious and needs to be approved without further ado. Thank you for your question, and I do invite all the participants to send any questions, no matter how simple (or difficult!) they may seem.


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