Level I and II wages in foreign labor certification

Signed letter (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2002/TEGL5-02.pdf):

Employment and Training Administration Advisory System
U.S. Department of Labor
Washington, D.C. 20210
CLASSIFICATION: Foreign Labor Certification
CORRESPONDENCE SYMBOL: OWS
DATE: August 7, 2002

TRAINING AND EMPLOYMENT GUIDANCE LETTER NO. 5-02

TO: ALL STATE WORKFORCE LIAISONS
ALL STATE WORKFORCE AGENCIES
ALL STATE WORKER ADJUSTMENT LIAISONS
ALL ONE-STOP CENTER SYSTEM LEADS
FROM: EMILY STOVER DeROCCO, Assistant Secretary
SUBJECT: Clarification Of Level I And Level II Skill Levels For The Purposes Of Prevailing Wage Determinations

1. Purpose. To clarify how to assign skill levels to jobs when making a prevailing wage determination for foreign labor certification purposes.

2. References. General Administration Letter 2-98: Prevailing Wage Policy for Nonagricultural Immigration Programs.

3. Background. General Administration Letter (GAL) 2-98, dated October 31, 1997, provided general guidance on how prevailing wages are to be determined for the purposes of foreign labor certification non-agricultural programs. One of the major concepts discussed in that GAL is that of “skill levels in wage determinations.”

We have been informed that the process of determining skill levels remains one of the least understood and, therefore, most controversial elements of the prevailing wage determination process. The attached questions and answers are intended to clarify the more pervasive of the questions regarding determining skill levels.

The skill levels discussed in this document are found in the on-line wage library on the Foreign Labor Certification web site (OWS.DOLETA.GOV/foreign.asp) and in many popular surveys produced by the private sector. The on-line wage library (based on the Occupational Employment Statistics Survey) is provided as a service to users of the Foreign Labor Certification programs.

RESCISSIONS: None
EXPIRATION DATE: Continuing
Occupational Employment Statistics Survey) is provided as a service to users of the
Foreign Labor Certification programs.

An employer may provide for prevailing wage purposes a survey done by some source
other than the on-line wage library. When this occurs, the survey is to be reviewed
against the standards stated in GAL 2-98. If the employer provided survey is found to
meet the standards of GAL 2-98, it will be approved, regardless of how the wage found
in that survey compares to that found in the on-line wage library. When an employer
provides a survey that contains more than one level for the occupation in question, it is
the employer's responsibility to provide information to show that the level selected
comports with the job description of the job opportunity being requested.

4. Action Required. This information should be made available to all staff involved in
determining skill levels for the purposes of prevailing wages and review of labor
certification requests. Staff involved in determining skill levels for these purposes are to
review these questions and answers and use them when determining skill levels.

5. Inquiries. Direct questions to your regional foreign labor certification officer.
6. Attachment. Q’s & A’s Regarding Level I and Level II designations in the Employment Certification Program.

Questions and answers attachment (https://www.dol.gov/sites/dolgov/files/ETA/advisories/TEGL/2002/TEGL5-02_Attach.pdf):

“Q’s & A’s” Regarding Level I and Level II Designations in the Alien
Employment Certification Program

1. What are the general factors involved in determining that a position should be
designated a level I position?

General Administration Letter 2-98 (GAL 2-98) states:

Level I employees are beginning level employees who have a basic understanding of
the occupation through education or experience.

They perform routine or moderately complex tasks that require limited exercise of
judgment and provide experience and familiarization with the employer's methods,
practice, and programs.

They may assist staff performing tasks requiring skills equivalent to a level II and may
perform high-level work for training and development purposes.

These employees work under close supervision and receive specific instruction on
tasks and results expected.

The level I job can require education and/or experience, but it does not require an
advanced level of understanding to perform the job duties. Level I includes “entry level”
jobs, but may also include some supervised activities, which exceed those normally
considered as entry level.

With a basic understanding gained through education and/or experience, the level I
employee will perform tasks that range from routine to moderately complex, relative to
the occupation. The level I employee might exercise some independent judgment, but
his/her exercise of independent judgment will be on a limited, non-routine basis.

The level I employee may assist more advanced employees. A level I employee may
perform some higher level work under supervision, but the purpose of such work is
primarily to gain experience and exposure to other aspects of the employer’s
operations.

Level I work is closely monitored and reviewed for accuracy.

Level I includes those jobs, which are typically referred to as “entry level positions,” but
may include jobs, which have activities that normally exceed “entry level” activities.

2. What are the general factors involved in determining that a position should be
designated a level II position?

GAL 2-98 states:

Level II employees are fully competent employees who have sufficient experience in the
occupation to plan and conduct work requiring judgment and independent evaluation,
selection, modification, and application of standard procedures and techniques. Such
employees use advanced skills and diversified knowledge to solve unusual and
complex problems. They may supervise or provide direction to staff performing tasks
requiring skills equivalent to a level I. These employees receive only technical guidance
and their work is reviewed for application of sound judgment and effectiveness in
meeting the establishment's procedures and expectations.

3. Are certain OES/SOC codes always classified as level II positions?

No. All OES/SOC codes encompass both level I and level II positions. It is improper to
classify any job as level I or level II based solely on the OES/SOC code. The
OES/SOC survey provides level I and level II wages for all OES/SOC codes, including
managerial and professional jobs at the high end, and assistant or helper codes at the
low end. Any job may be performed at either level of skill, depending on the level of
supervision provided, the relative complexity of the job duties, the level of judgment
required, and application of the other factors that distinguish between levels I and II.

4. Are certain Dictionary of Occupational Titles (DOT) codes always classified as
level II positions?

No. Further, if the DOT code is used for reference, it should be “cross walked”
to the relevant OES/SOC code, and then the job description and requirements should
be analyzed to determine whether the particular job is at level I or level II. It should be
noted that the DOT to SOC crosswalk is sometimes in error, so the occupation
descriptions from the DOT and SOC must be compared before accepting the results of
the crosswalk. If the Standard Vocational Preparation (SVP) for the more narrowly
defined DOT occupation differs from the SVP/job zone shown on O*Net, the DOT SVP
may be used until the O*NET has completed its experience/training survey of the
specific occupation being requested.

5. Since the OES/SOC, DOT, or SVP codes do not indicate whether the job is

level I or level II, how can the job description be used to determine whether the
job is level I or level II?

The generic occupation descriptions found in the OES/SOC, DOT and similar coding
structures do not provide sufficient information to the State Workforce Agency (SWA) to
determine whether the job is level I or level II. Close adherence to the generic
occupation description, without providing additional information in the job description,
can lead to erroneous classifications. The job description should include words
describing one or more of the specific relevant factors: the complexity of the job duties,
the level of judgment, the amount of supervision, the nature of supervision, and the
level of understanding required to perform the job duties. The job description is the
primary determinant for a level designation. Additional information regarding the job will

not be given the same weight as the actual wording of the job description or the stated
job requirements.

If a job description includes the tasks normally performed by a fully competent
employee in the occupation, and the job description does not specifically point to the
general factors associated with a level I position, then it will likely be designated a level
II position.

6. If an employee has some level II duties, is the job always level II?

Workers at level I may perform some higher level work under supervision, primarily for
training and development purposes.

7. Does the place in the employer's hierarchy determine whether a job is level I
or level II?

The location of a position within an employer's internal job structure or hierarchy might
be one relevant factor in determining whether a job is level I or level II. Workers at a
lower level within an employer's hierarchy are more likely to be working under close
supervision, and working on tasks that are routine or only moderately complex,
consistent with level I. However, the job description is the primary determinant.

8. Is the amount of experience required for a job a relevant factor in determining
whether the job is level I or level II?

The amount of experience required for a job is relevant, but not necessarily
determinative. Some level I jobs require some experience. Thus, jobs that require
experience can be level I, so long as the job description is consistent with the nature of
the work performed at level I as described above. Jobs that require significant years of
experience are more likely to be level II jobs. There is, however, no fixed amount of
experience that divides level I from level II.

When an employer requests training/experience that exceeds the SVP/job zone for the
occupation requested, it is assumed this is a level II position unless the employer
provides adequate evidence that it is a level I. It should be noted that, until the DOT
SVP is superseded by a revision to the occupation’s Job Zone/SVP based on the
O*NET study of the occupation’s training and experience, if the employer can show
evidence that the DOT SVP for the DOT occupation being requested varies from the
“job zone” for the appropriate OES/O*NET occupation, that DOT SVP may be used in a
level I/level II determination. However, the job description is the primary determinant.

9. Is the amount of education required for a job a relevant factor in determining
whether the job is level I or level II?

Yes. Under GAL 2-98, if a baccalaureate degree is normally required for entry into the
occupation, the wage rate for a job offer that requires an advanced degree (Master's or
Ph.D.) shall be at level II. There are instances when the employer can present sufficient
evidence that the job does not require independent performance of all of the duties
encompassed by the occupation and, therefore, is a level I in that particular instance.

10. Will a job that requires a Master's degree always be classified as level II?

Some positions requiring a Master's degree can be level I, if entry into the occupation
requires the basic knowledge gained through graduate level education. (See Q&A 12,
below.) Under GAL 2-98, if an advanced degree is the minimum entry requirement into
the occupation, the wage rate shall be level I, unless there are other requirements
contained in the job offer or components thereof which require skills that are at a level
II. With that in mind, the job description should address the level I factors such as
whether the employee will perform no more than moderately complex tasks relative to
the occupation; whether the employee is closely supervised; and whether the employee
is limited in exercise of independent judgment.

11. Does the SVP code indicate whether a Bachelor’s or Master’s degree is the
normal entry requirement for the occupation?

The SVP code for the occupation is relevant, but not necessarily determinative. SVP
time can include experience, formal education, and any combination of experience and
education. Thus, the SVP alone is not a guide as to whether the occupation requires a
Bachelor's or Master's degree. Do not infer that a job requires a particular educational
level based solely on the SVP rating. Of course, an advanced degree exceeds the
allowable SVP for jobs at SVP 6 and below.

12. How can one determine whether a Bachelor’s or advanced degree is the
entry-level requirement for an occupation?

The Occupational Outlook Handbook can be consulted as a guide for many
occupations. Other relevant sources about industry standards may include expert
opinions written by knowledgeable individuals, supported by evidence and persuasive
reasoning.

13. Do certain tasks, such as researching or analyzing, inherently result in a level
II designation?

No. Any task can be performed under close supervision and can involve working on
routine tasks or tasks of moderate complexity consistent with level I.

14. Should medical residents be classified as level I or level II?

It will depend on the nature of the resident position. As a general rule, first year
residents would be level I because they are closely supervised. Other residents might
be classified as level II because of the nature of the residency. The nature of the job
duties might deem a particular position level II, if the job description indicates the
resident will operate with little supervision, perform advanced medical procedures, and
exercise great latitude of independent judgment.

15. Are all managerial jobs level II?

No. All managerial jobs are not per se level II. There must be entry-level managers for
there to be experienced managers. Many managers are entry-level and later progress
to more complex and more responsible duties. Entry-level managers might supervise
other workers, but their work is closely supervised by a senior manager or another
superior. Look to the job description to assess the nature of the duties, supervision,
exercise of judgment, and other factors.

16. Should level II be used if the job involves work at a client or customer site?

Not necessarily. It is possible for employers to provide close supervision to employees
even if the employees are working offsite. Offsite or roaming employees may have
limited discretion, may be required to follow specific guidelines and instructions, and
may be required to provide frequent and detailed reports to their supervisors. In
addition, employers may assign an entire team, including supervisors or team leads, to
work at a client or customer site. Thus, it is improper to classify a job as level II solely
because the work is performed at a client or customer location. The job description
should provide a sufficient explanation of the work to determine whether it is level I or
level II.

17. If a position requires a license is it automatically considered level II?

No. Although the starting point in the analysis is that if an occupation requires a
license, then the position is level II, some positions that require licensing are not
necessarily level II. The employer has the option to produce evidence that the position
does not involve the independent performance of all of the duties of the occupation.

In particular, the SWA should look to the employer's job description and stated
requirements to evaluate, along with other factors, whether the position is closely
supervised, involves only moderately complex duties, and allows limited exercise of
independent judgment. If this is the case, then the position could be classified as level
I, even though a license is required to perform the job. An example is a psychologist in
a group practice. A license is required. But a first year psychologist may be assigned
to work alongside a senior psychologist, or be closely supervised by a more senior
psychologist. Under these circumstances, the position could be considered level I.

18. If a SWA assigns a level II wage from the OES/SOC survey, and the employer
does not agree with the level designation but does not wish to use an alternative
survey, what is an employer's recourse to obtain approval for a level I wage?

The employer should first verify with the SWA the specific OES/SOC code that was
used. If the employer believes the OES/SOC code is not correct, the employer should
provide an explanation of why a different code is more appropriate. If the OES/SOC
code is not disputed, the employer may provide a more detailed job description,
addressing the factors discussed above, to demonstrate why the position should be
classified at level I. If the education or experiences are at issue, the employer may also
submit additional evidence showing that an advanced degree or some experience is an
accepted entry-level requirement for the occupation. If the SWA still stands by its
determination, the employer may proceed with a Challenge according to the regulations
and procedures governing the program for which certification is sought.