Prevailing Wage Determination Overruled on Appeal

In this BALCA case, the employer, University of Michigan, filed an appeal,

“The Employer filed an Application for Prevailing Wage Determination (ETA Form 9141) in connection with its efforts to hire an H-1B worker. (AF 27-31). The Employer noted on the Form 9141 that it was an institution covered by the American Competitiveness and Workforce Improvement Act (“ACWIA”). (AF 27). The Employer indicated the job opportunity corresponded with the SOC/O*Net code for “Compliance Officers,” but requested that the Certifying Officer (“CO”) use an EduComp wage survey to calculate the prevailing wage instead of the OES data for Compliance Officers. (AF 28). The survey provided by the Employer contained wage data from several universities for the position of “Institutional Review Board Specialist” and listed an average annual salary of $57,428.00. (AF 37-91). The CO rejected the Employer‟s wage survey for reasons not relevant to this appeal and relied on the OES data for “Compliance Officers” to issue a prevailing wage determination (“PWD”) of $95,534.00. …

Under the regulations, an ACWIA wage for an institution of higher education may sample only other institutions of higher education. The CD‟s insistence that the Employer provide a survey that sampled each type of ACWIA entity is inconsistent with the Department‟s interpretation of the regulation and therefore constitutes an abuse of discretion. …”

BALCA Case No.: 2015-PWD-00006, ETA Case No.: P-200-14213-870957, goes on to order that,

IT IS HEREBY ORDERED that the prevailing wage determination made by the Center Director is OVERRULED, and this matter is REMANDED to the Center Director for further processing consistent with this order.”

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