BALCA Decision on ACWIA Prevailing Wage Determinations
The Board of Labor Certification Appeals (BALCA) issued an interesting decision in the Matter of University of Michigan [PDF version].1 The decision concerned the appeal of an American Competitiveness and Workforce Improvement Act (ACWIA) prevailing wage determination that was part of an H1B petition [see article] by the University of Michigan.
Department of Labor (DOL) regulations found in 20 C.F.R. 656.40(e) [PDF version], which were written to implement Section 415 of ACWIA state that:
In computing the prevailing wage for…an employee of an institution of higher education, or an affiliated or related nonprofit entity, a nonprofit research organization, or a Governmental research organization, the prevailing wage level takes into account the wage levels of employees only at such institutions and organizations in the area of intended employment.2
The University of Michigan provided evidence for the prevailing wage of an H1B petition beneficiary based upon the wages of similarly situated workers at “institutions of higher education.” The Certifying Officer (CO) rejected the University of Michigan's approach because he argued on the argument that the ACWIA wage must consider all of the ACWIA entities listed in 22 C.F.R. 656.40(e), and not just institutions of higher education.
BALCA determined that the DOL regulations clearly envisioned treating each of the entities listed in ACWIA as separate for prevailing wage determinations.3 Because the DOL was unable to determine prevailing wages for “affiliated or related nonprofit entities and nonprofit research organizations,” it folded them into a category with institutions of higher education. However, the DOL kept separate a universe of institutions of higher education because it was able to make prevailing wage determinations for institutions of higher education.
Because BALCA determined that the DOL regulations only allow for ACWIA wage determinations for institutions of higher education to sample only other institutions of higher education, BALCA rejected the CO's insistence that the University of Michigan sample each type of ACWIA entity as an abuse of discretion.
___________________