Immigration News: Jose Comments, DOL Listens: A Breakdown of the DOL Response to Jose's Comments on the H-1B Dependant Employer Regulations *** www.usvisanews.com

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1/5/01

Hi, again! When the last set of rules were dumped due to their violation of the Administrative Procedure Act, the DOL was given express instructions: READ THE COMMENTS!! Well, guys, I'm here to tell you they did. I wrote over 15 pages of comments on this rule and really believe they were all read and considered... and I am ELATED. THAT is how this process is SUPPOSED to work! The DOL did indeed read what we suggested, although their responsiveness to the comments was still disappointing in many areas.

Now it was my turn to read, and it was over 150 pages of snoring, boring legalese. My non-lawyer part of my brain zonked out while my lawyer side sat riveted. And my left leg fell asleep and hurt a lot. It wasn't just the LENGTH... it was the READABILITY. I would read an ENTIRE section of the regulation and read it again and again... and still not be clear on what was accepted and what was not. It was PAINFUL. I mean, I don't expect immigration regulations to read like a Stephen King novel, but this one was a KILLER. I suspect that there are about 20 of us -- including Congress, the DOL, and the rest of us -- who have read the regulation in detail. The other guys all fell asleep, or at least their left legs did.

Anyhow, instead of rehashing the whole enchilada, I thought it would make more sense for me to go through the various laws and regulations with an eye out for THE UNNOTICED AND RELEVANT. I looked for the incongruous little details I raised the LAST time around, the ones that surface later and mess everything up, just when you thought that the path was indeed rosy.

Finally, you will notice that on some things, I just tell you what I said but I don't clearly tell you what DOL is doing about it. The truth is that I am unclear on the meaning of many things they said, and from my initial discussion with colleagues, I am not the only one. So, rather than tell you how I THINK the DOL is responding to a particular issue, I am just presenting the issue raised. At least you can follow the storyline that way, and I don't risk giving you some whacked out interpretation from my legally-fried brain... (-;

Here are my additional observations on the H-1B regulations issued by DOL and the comments I gave which were addressed in the Regulations (but make sure you read Greg's more detailed article on ILW):

1. Let's start of with a still-astonishing fact: DOL states that only 50 out of the 50,000 estimated H-1B employers will meet the standard. To which I respectfully respond:

150 pages for 50 Employers??? HUH???

But you know what? It isn't DOL's fault alone. It's just more proof of a system where the monster from the lab has taken over the castle. If Congress ever suspected things could get this ridiculous and messy, I suspect the original H-1B language in the Immigration Act of 1990 (IMMACT90- the whole original mess that started the LCA requirements) would have been a little more clear.

2. There is a new LCA form, which is three pages long, and is online at: http://ows.doleta.gov

It will still work with the faxback system but from January 19, 2001 to February 5, 2001, the system will be down. They will be implementing the new form. H-1B "dependent" companies, even if they still have valid ETAs of the old kind will need to re-file

TRANSLATION TO CORPORATE CLIENTS: prepare to re-file nationwide if your company meets "dependent" standards.

3. Regarding changes/mergers:

"Under the proposed rule, an employer who merely changes corporate identity through acquisition or spin-off could merely document the change in the public file (including an express acknowledgment of all LCA obligations on the part of the successor entity), provided it satisfied the Internal Revenue Code definition of a single employer."

In other words, no new LCA. Cool, but hardly new. Under current rules this was pretty much the case: if there is no change in employer ID number, document the change and just tell the DOL during the next routine re-filing. But look what they gave us:

Upon reconsideration, DOL's Interim Final Rule provides that a new LCA will not be required merely because a corporate reorganization results in a change of corporate identity, regardless of whether there is a change in the EIN and regardless of whether the IRS definition of single employer is satisfied, provided that the successor entity, prior to the continued employment of the H-1B nonimmigrant, agrees to assume the predecessor entity's obligations and liabilities under the LCA. The agreement to comply with the LCA for the future and to any liability of the predecessor under the LCA must be documented with a memorandum in the public access file.

Comment: cool! Smart correction to the DOL guys who wrote this.

4. Regarding determining H-1B "dependency" (a term which conjures images of crack houses, not IEEE members, to this old-schooler):

The Interim Final Rule also significantly reduces the burden to employers in making the computations of dependency. The Rule will permit employers to use a ``snap shot'' test to determine if dependency status is readily apparent and requires a full computation only if the number of H-1B workers exceeds 15 percent of the total number of full- time workers of the employer.

Comment: sounds fair to me; it'll sure save my clients a ton of time and money compared to what they wrote up last time. Read on below for the nitty gritty.

5. Regarding record-keeping obligations for the employer: I still think they are onerous and have that "guilty till proven innocent" vibe that the last set of DOL provisions had.

6. Regarding Section F. Offers of Employment to Displaced U.S. Workers (Sec. 655.738(e)): as an employer in a democracy, I have a fundamental problem with being told that I need to offer jobs to people I don't necessarily want to hire. I get hate mail once in awhile from disgruntled U.S. IT workers claiming they are getting paid peanuts and blaming the Indian IT exodus. It seems that every time I extend my hand and ask them to send me a resume, they disappear. I am not an HR guy but I suspect that at least in the IT economy, to be "displaced," there has to be SOMETHING seriously wrong. My clients are DESPERATE, at least in the IT sector, and passing up a qualified U.S. worker is about the stupidest thing they could do. But they don't want to hire jerks or problem employees, regardless of race creed and color. I understand the intent and spirit of this concept, but my feeling as an employer is "Hey, Government, thanks but please don't tell me who I have to hire." Are you smelling my life long Republican voting card yet?... (-;

7. I don't have a comment on this but want to make sure you read and understand it, especially our IT clients:

The ACWIA definition of ``H-1B-dependent employer'' provides a formula for comparing the number of H-1B nonimmigrants employed to the total number of full-time equivalent employees (FTEs) in the employer's workforce. The Act provides that an H-1B-dependent employer is one that employs in the United States:

25 or fewer FTEs, and more than seven H-1B nonimmigrants; or

At least 26 but not more than 50 FTEs, and more than 12 H- 1B nonimmigrants; or,

At least 51 FTEs, and H-1B nonimmigrants in a number that is equal to at least 15 percent of the number of such FTEs.

Thus, the H-1B-dependency formula for all employers uses two dissimilar numbers: the number of H-1B nonimmigrants employed (a ``head count'' of all H-1B workers, both full-time and part-time) and the number of FTEs (including both H-1B workers and other employees). For larger employers (i.e., those with 51 or more FTEs), the computation is made with the number of H-1B workers as the numerator and the number of FTEs as the denominator; if the ratio is greater than 15 percent, then the employer is H-1B-dependent.

8. My first golden moment in the regulations:

"Two other commenters (Kirkpatrick & Lockhart, Jose E. Latour and Associates (Latour)) also urged consistency between INS and DOL rules."

Not revolutionary, but there WAS a basis for my request.... (-;

9. Next...

"Three commenters (AILA, Hammond & Associates (Hammond), and Latour) recommended that ``full-time'' be determined by individual employers consistent with their standards and business practices."

Reasonable, right? Air traffic controllers have a slightly different work reality than Toll Booth collectors, fair to say?

10. Check this one out...

"Another attorney (Latour) acknowledged that while the proposal was burdensome, there seemed to be no attractive alternative to requiring H-1B-dependent employers with existing LCAs to file new LCAs for the purpose of filing new H-1B nonimmigrant petitions."

I know this will make affected companies mad at me, but it's true... You couldn't do this without changing the LCA. Sorry, guys.

11. Okay, now I'm starting to sound plain old Pro-DOL:

"The Department, in the NPRM, discussed the issue of what records, if any, the employer would be required to create and retain concerning its dependency determination(s). The Department proposed that documentation be created and retained only when an employer's non- dependent status is not readily apparent. On the other hand, the Department also proposed that if the employer's dependency status is ``readily apparent'' (either dependent or not dependent), no records would need to be made or retained. ..."

Sounded fair to me.

"Kirkpatrick & Lockhart, Latour and AOTA supported the NPRM proposals."

This is one of several points upon which AILA and I disagreed.

12. The majority of commenters (each of the 20 individuals, the AFL-CIO, Kirkpatrick & Lockhart, Latour, the Institute of Electrical and Electronics Engineers (IEEE), and the American Engineering Association (AEA)) suggested that all employers be required explicitly to attest to their status as dependent or non-dependent when filing LCAs.

Why not? If a company is bringing in that many H-1Bs, there are two possible explanations. EITHER:

They have huge demand and nothing to hide OR
They are a sleazy body shop exploiting foreign workers

13. Okay, you part time, multi-H1B types, you owe me:

"Latour noted that in the information technology industry, some of the most highly compensated and distinguished experts work part-time for several employers, and therefore suggested that the Department allow the $60,000 minimum compensation to be computed on an hourly, weekly, or other basis."

But:

"The Department does not concur, however, with the view that the $60,000 minimum compensation requirement may be prorated for part-time employees. "

HEY, I TRIED!!

14. Regarding the government's opinion on YOUR qualifications:

"In addition, two law firms (Kirkpatrick & Lockhart and Latour) expressed the view that DOL should not judge the relevance of the alien's educational background to their job if that alien is receiving $60,000 or more per year."

I gotta meet these Kirkpatrick and Lockhart guys -- birds of a feather, we are, eh?

15. Okay, this one is a bit tricky: it relates to when the DOL can determine whether or not a REAL employment relationship exists:

"The Department stated its view in the NPRM that where Congress has not specified a legal standard for identifying the existence of an employment relationship, the Supreme Court requires the application of 'common law' standards"

Bullfeathers, in my opinion, and AILA agreed:

Four commenters (AILA, ITAA, Latour, Chamber of Commerce) rejected the common law test as unnecessary, failing to reflect contemporary realities within the regulated community, or lacking predictability.

But the DOL ignored our thoughts and kept the common law rule. At least we were quoted, right?

16. On the subject of WHAT is "employment":

"Senators Abraham and Graham and three representatives of employers (AILA, ITAA, Latour) asserted that the legislative history of the ACWIA notes that ``indicia of employment'' was meant to operate in a manner similar to IRS provisions and that the focus of the regulations should be on that test."

Good company, huh? Well, that was followed by what could be BOTH the DUMBEST thing in the reg and the WORST testament to federal consistency:

"Furthermore, how the employee is treated for IRS purposes is simply not pertinent..."

Lame-a-mundo, guys. REALLY bad, unless your objective is to teach everyone that federal inconsistency is the way we like to run our country. Terrible call.

17. On layoffs:

"Two commenters (Kirkpatrick & Lockhart, Latour) noted that the Department correctly recognized that the expiration of a contract leading to the termination of employment is not a ``layoff'' for ACWIA purposes."

18. On hard to fill jobs:

"One commenter(Latour) urged the Department to be sensitive to the geographic needs of employers in administering this section of the ACWIA, noting that U.S. workers often are less willing to go to some localities than H-1B workers."

19. On health care workers treating the disabled and elderly at home and dealing with all the bureaucratic nonsense:

"One commenter (Latour) requested that the regulation specify that worksite posting requirements do not apply to rehabilitation professionals providing home health care."

20. On forcing companies to hire jerks:

"Latour and Kirkpatrick & Lockhart commented that subjective factors cannot be removed from the hiring process, including considerations such as personality, attitude, and other intangible issues."

21. Here is some really good stuff from the Big IT Boys on the subject of worksite dispersion:

"CIP, Intel, and Microsoft commented that large employers, with many employees dispersed over a number of worksites, did not have the practical ability to keep track of cumulative work days for H-1B workers for every location to which the employees travel for business. Microsoft added that the ``short-term'' placement option effectively prevented H-1B employees from participating in joint development projects with development partners. Microsoft recommended that the rule be revised to increase the number of short-term placement days from 90 to 180 and that the regulation impose the time test on a per employee basis, rather than on a location basis; apply it to a specific worksite and not any worksite within the area of employment; and require a new LCA only when the principal place of employment is changed. Intel and ACIP recommended that the Department revise its approach to the roving employee to one which differentiates between companies that are dependent on foreign workers (employee base is comprised of more than 15 percent H-1B workers) and those that are not dependent. Such a system, Intel opined, would enable the Department to better focus its enforcement activities, while not penalizing non-dependent employers with excessive paperwork."

22. Another great observation quoted, this one regarding compensation:

"Several commenters (Microsoft (1995 comment), Motorola (1995 comment), Coopers & Lybrand (1995 comment), ITAA, Intel, ACIP, and AILA expressed strong concern over the requirement that the employer's compensation system be sufficiently detailed and documented in the public access file to enable a third party to apply the system to arrive at the actual wage. The commenters contended that such a requirement is unrealistic and imposes an impossible burden on employers."

I didn't have much to say on this the first time around but now that they brought it up, they are so right. It is BOGUS to force private companies to outline all this, and it is not publicly needed information. They tried this once before, remember?... It was called the Soviet Union... (-;

23. Talk about an unlikely pairing: check this out: me and the union boys on the same bench:

"Several commenters, including AOTA, APTA, IEEE, and an attorney (Latour), generally endorsed the Department's NPRM approach in this area. IEEE stated that the Department's proposal ``will help implement the letter and the spirit of the law that the wages and working conditions of U.S. workers not be adversely affected'' and, at the same time, ``help to reduce the likelihood that employers will discriminate against H-1B workers by offering them less generous benefits.''"

24. On the concept that big companies are too busy to systematically exploit the H-1B system:

"Some commenters (ACIP, Intel, Latour) indicated that multinational corporations typically offer similar benefit packages to all their employees. Thus, ACIP stated that ``most employers already provide the same benefits to all workers and do not distinguish between U.S. and foreign nationals.''

25. I still can't figure out whether they agreed with me or not on this one... You be the judge:

"In addition, Latour commented that the traditional 40-hour week is rapidly changing. It stated that some firms engage workers to perform a project which is completed in less than a year, and then the worker has several months off and may ``moonlight'' at a second job (presumably under a second petition). Latour assumed this practice would be considered ``part-time,'' and suggest that DOL focus on three issues in determining if there is a violation of the ``benching'' provision: (1) Whether the prevailing wage is being paid; (2) whether the worker is making a plausible living; (3) whether the nature of the employment schedule is usual and reasonable for the type of work.

The Department agrees that nonproductive pay is based on the number of hours per week on the H-1B petition. The LCA has therefore been amended to alert employers that their H-1B employees should not regularly work more than the number of hours shown on the petition, which may be expressed as a range of hours. If the H-1B worker normally works full-time or a greater number of hours than shown on the petition, the Department will examine the facts and circumstances and charge the employer with misrepresentation where appropriate. In light of the importance of the distinction between part-time and full-time employment for purposes of the employer's wage obligations, the Department has modified the proposed LCA form to specify that the employer is to designate that the position(s) covered will be either part-time or full-time; a combination of part-time and full-time positions cannot be entered on a single LCA form.

The Department cautions employers that time spent in training or studying to get a license is ordinarily compensable hours worked under the Fair Labor Standards Act without regard to any rules on payment for nonproductive time under the H-1B program.

The Department agrees with AILA's comment that an employer may secure approval of a new H-1B petition for part-time work, after which the employer is obliged to pay only for the part-time work. The nonproductive pay computation is based on the petition that is in effect at the time the H-1B worker is in nonproductive status. Correspondingly, before INS approves a new petition that changes the work time (part-time to full-time or vice versa), the employer will need to file a new LCA that reflects the change.

Finally, the Department disagrees that the scenario described by Latour is part-time work. Rather, it is full-time work with periods where no work is available due to actions of the employer, rather than the employee. This period of non-productive work must be paid unless the worker is temporarily unable to return to work because of alternate commitments or other factors within the control of the employee.

Okay, first of all, NOT having had any particular modifications undertaken in Sweden, I REALLY resent being called "IT." Second, I DO think they are saying that they completely don't get what I am saying, which was that if a guy gets $60K a year for working 3 months on, 24 hours a day, and three months off, he is NOT working part time. But they missed the subway. See ya later, Orange Line.

Whoops.

26. On the LUDICROUS practice of inflated damages when employees choose to leave H-1B employers:

"In the NPRM, the Department proposed to prohibit employers from attempting to enforce any such liquidated damages provisions without first obtaining a State court judgment ordering the H-1B worker to make such a payment. The Department explained its view that State courts were better versed than the Department to resolve State law questions posed by such matters. The Department also stated its intention to make it clear that employers cannot collect the additional $500 petition fee in the guise of liquidated damages, and noted its concern that some employers might attempt to collect liquidated damages in situations where the employers' unlawful conduct may have caused the H-1B worker to prematurely leave the employment.

A number of commenters responded to the Department's proposals on this issue. Two commenters (Latour, Padayachee) endorsed the approach taken in the NPRM. Padayachee also expressed the view that only quantifiable liquidated damages should be claimable.."

Enough of this extortion bit on the part of U.S. employers: the legitimate companies don't do it and the ones that do should be stopped!

27. In the "we're in the Government and we don't believe that companies are mean to each other," the DOL gave us this SURREAL response:

"Kirkpatrick & Lockhart and Latour expressed their views that investigations should be initiated only on information from injured parties, while acknowledging that the scope of the provision goes beyond ``whistleblowers.'' The firms expressed particular concern about competitor complaints.

Contrary to the views expressed by Kirkpatrick & Lockhart and Latour, the Department is of the view that the ``other source'' provision of the ACWIA was intended to extend to any source likely to have knowledge of the employer's practices or employment conditions, or of an employer's compliance with its attestation obligations. Furthermore, the Department has long considered a competitor to be an ``aggrieved party,'' as defined in its current regulations at Sec. 655.715."

So, basically, according to this view of "reality", a mismanaged, jealous rival can simply file a complaint against a 100% compliant employer and force them to spend thousands in proving that they are not guilty. DOL: WRONG, WRONG, WRONG! Your view of this is based on sterile governmental interpretation and has no bearing on business reality. FIX THIS PLEASE or it will be used as a tool by economic failures to "equalize" opportunity by siccing the Feds on innocent parties. PLEASE listen to me on this one, DOL guys: I don't have a SINGLE client which is "H-1B Dependant!"

28. On big companies trying to sincerely estimate H-1B need in attestations:

"The third commenter, Latour, suggested that the Department be flexible regarding ``overfilled'' LCAs and consider employers' explanations in those situations where the ``overfill'' is significant."

29. We won a BIG one on this one, Employers:

"The nine commenters on this proposal (ACIP, AILA, Cowan & Miller, Hammond & Associates, Intel, ITAA, Latour, Rubin & Dornbaum, White Consolidated Industries) were unanimous in their opposition to a regulation that would require employers to have separate travel reimbursement standards for H-1B workers than for other employees. These commenters suggested that the standard for H-1B workers, like all other workers, should be reimbursement for actual expenses incurred while on travel.

The Department has fully considered these comments, as well as its own post-NAM enforcement experience. During the post-NAM period, when the regulation has been enjoined, the Department has been enforcing actual expense reimbursement for all H-1B business travelers. In these enforcement proceedings, the Department has not encountered problems pertaining to abusive practices or difficulties in proof of actual expenses, since it has found that employers in fact keep a record of expenses as a prudent business practice. Therefore, the Department is adopting the commenters' recommendation."

Enough said on that! HURRAY!

30. While the bulk of my comments were critical, I made sure to support the DOL in needed reform:

"A number of commenters (ACIP, Intel, ITAA, Latour, Godward) expressed their approval of the Department's recognition that not all activities engaged in by a worker occur at a ``worksite.''

31. Another MAJOR victory:

"Several commenters (AILA, ACIP, Kirkpatrick & Lockhart, Latour and Sun Microsystems) disagreed with the Appendix A requirement that an employer use only objective factors in determining the actual wage while others offered suggestions on factors to be considered. Kirkpatrick & Lockhart indicated that by limiting this determination to objective factors, the Department was eliminating an employer's discretion in hiring and ignoring the reality that subjective as well as objective factors are evaluated in compensating employees in the corporate world. Frost & Jacobs (1995 comment) suggested that the Department include ``performance level'' as a legitimate business factor in determining actual wage. ITAA agreed with the Department's addition of ``job performance'' as an acceptable business factor in the January 5, 1999 NPRM.

After carefully considering all the comments, the Department has concluded that Appendix A--which was created in response to employers' requests for technical guidance--has not served its intended purpose and has, instead, caused some confusion. The Department has, therefore, decided that Appendix A will not be included in the Interim Final Rule."

Great job on this one, DOL guys! Let's keep the government outside of compensation strategy.

32. By the time I got to this next one, I was picturing a 300 pound compliance file, but the DOL had different things in mind:

"Another commenter (Latour) agreed that it was reasonable for DOL to require the retention of the records enumerated in the proposal, which it stated were records kept by typical employers. However, it expressed concern over a perceived requirement that all the documentation must be included in the public access file"

"IT"...good Lord. But look what they said:

"It appears that these commenters have misunderstood the documentation requirement as it relates to the public access file. The basic payroll information required to be maintained does not need to be included in the public access file, but rather must be available to the Wage and Hour Division in the event of an investigation. "

OOOHHHHHHHHH!!! Why didn't you SAY that, guys? That makes MUCH more sense!

33. On the most personally painful and scary part of the regulation, in which the DOL purported to define how and when an attorney-client relationship can exist:

"ITAA and ACIP argued that the current law is directed toward prohibiting certain deductions from an employee's salary that will push it below the required wage rate. In other words, as long as the H-1B worker receives at least the required wage, it should not be a violation if the worker then spends that money for job-related matters such as fees. ACIP and ITAA stated that as a minimum, if the H-1B worker's wages minus the expenses equals or exceeds the required wage rate, there should be no violation. Latour agreed with the Department that if an H-1B worker's wage is below the prevailing wage, it would be a violation to deduct attorney fees from the worker's compensation, but stated that there is no basis for prohibiting the employer from having the employee handle the payment if the fees, when subtracted from the worker's pay, would not result in compensation less than the prevailing wage."

The DOL responded that:

"The Interim Final Rule continues to provide that any expenses directly related to the filing of the LCA and the H-1B petition are a business expense that may not be paid by the H-1B worker if such payment would reduce his or her wage below the required wage...

...H-1B nonimmigrants are permitted to pay the expenses of functions which by law are required to be performed by the nonimmigrant, such as translation fees and other costs related to the visa application and processing. The Department also recognizes that there may be situations where an H-1B worker receives legal advice that is personal to the worker. Thus, we did not intend to imply that an H-1B worker may never hire an attorney in connection with his or her employment in the United States. While the illustrative expenses (translation fees and other costs relating to the visa application) were not denominated in the NPRM as legal expenses, if they were provided through an attorney these costs and associated attorney fees would be personal to the worker and may be paid by the worker, rather than expenses that would have to borne by the employer. Similarly, any costs associated with the H-1B worker's receipt of legal services he or she contracts to receive relative to obtaining visas for the worker's family, and the various legal obligations of the worker under the laws of the U.S. and the country of origin that might arise in connection with residence and employment in the U.S., are not ordinarily the employer's business expenses. As such, they appropriately may be borne by the worker.

An employer, however, may not seek to pass its legal costs associated with the LCA and H-1B petition on to the employee. With respect to the concerns regarding small employers who may not have familiarity with H-1B requirements and may not know an attorney specializing in this area of law, there is nothing to prohibit an H-1B worker from recommending to the employer an attorney familiar with the requirements of the H-1B program. In addition, if an applicant for a job hired an attorney clearly to serve the employee's interest, to negotiate the terms of the worker's employment contract, to provide information necessary for the H-1B petition or review its terms on the worker's behalf, or to provide the applicant with advice in connection with application of U.S. employment laws, including the various employee protection provisions of the H-1B program and its new whistleblower provisions, the fees for such attorney services are not the employer's business expense. In its enforcement, the Department will look behind any situation where it appears that an employee is absorbing an employer's business expenses in the guise of the employee paying his or her own legitimate fees and expenses.

Okay, fair enough, I accept that, but it is STILL dangerously close to defining the terms of an attorney/client relationship. Young Turks, here is how I am handling it: if I hear that the cost of the legal fees is being deducted from the salary of that H-1B, I will check to see where that leaves the salary. If it goes under prevailing wage -- NOT 95% of prevailing wage -- I'll make the employer fix it. If it does not, I'll kiss my Statue of Liberty picture and thank God yet again that we are still living in the United States, where the government can't step in and arbitrarily remove the legal rights of those present. Enough said on that as well. The DOL has NO business defining ANYTHING regarding the retention of counsel UNLESS such arrangement violates prevailing wage rules. End of story.

34. Another TOTAL misunderstanding by DOL of the same comment, over and over again"

"Because the Department has not adopted any rigid measure of distance as a ``normal commuting area,'' locations near the boundaries of MSAs and PMSAs, and locations within or near the boundaries of CMSAs may be within normal commuting distance, depending on the factual circumstances.

The Department received four comments (ACIP, AILA, Intel, Latour) on this issue. ACIP believes that there is no justification for eliminating the use of CMSAs for prevailing wage purposes, and that requiring the use of PMSAs and MSAs will unnecessarily inflate the prevailing wage rate for employers located in certain metropolitan areas. "

MAN, did you guys NOT get what we were saying: all we want is to make sure that if a person commutes from MSA #1 to MSA #2, the reality of a normal business commute should be factored in and arbitrary wage fluctuations resulting from the arbitrary placement of MSA lines should NOT affect employers. That's it, that's all we said.