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While in Orlando, I discussed some theories that might apply to the impending ban on attorney fees for labor certifications after July 16, 2007. The ban prevents aliens from paying attorney fees to cover services performed for the Employer. The ban actually applies to agents, representatives, attorneys and all costs involved in the labor certification (PERM) process.
Theories set forth to comply with the new rule include the following: (1) Separate the attorney fees and costs for labor certification processing and bill them entirely to the Employer, while not billing anything to the alien. The PERM rule suggests that the preparation of a PERM case takes about one hour. The client (Alien) would be billed for the remainder of the case including the petition and the adjustment of status. (2) Represent the Alien and not the Employer, provided that the Employer seek representation by an agency such as "The Perm Center" instead of an Attorney. The Perm Center would simply perform those duties suggested by the PERM regulations: (a) Represent the Employer as Agent in Part "E" and (b) Sign as Preparer if submitting the form to DOL. Either or both of these agency options may be omitted. (3) Represent the alien and not the Employer, provided that the alien's attorney would prepare the application forms and send them to the Employer's attorney (not necessarily an immigration lawyer) who would then forward them to the Employer for signature. (4) Represent the alien and not the Employer but deal directly with the Employer on the assumption that a lawyer may represent one party without representing the other, and still deal with both directly, provided the non-represented party consents. In all the above (except number one) it is assumed that the Employer will sign a waiver of representation or acknowledgement that the attorney represents the alien and not the Employer). (5) Collect funds and deposit them in a trust account, pending a court decision from pending litigation to permit an attorney to represent both the Employer and the Alien and be paid by either one or by both.
I would appreciate receiving comments, questions, and queries on issues of practicality, legality and ethics relating to any of the above.
Question: I hope you might be able to provide me some guidance. When listing a range on a Notice of Filing (NOF), is it necessary to also indicate the same range on the 9089, or can you simply give the specific salary for that particular case, so long as it falls within the range on the NOF? If you do have to mirror the range, do you have to show ability to pay for the highest wage on the range? It was my understanding that if there was a salary range for a particularly position, then that range could be reflected on the NOF and you wouldn't have to do individualized postings for each employee of a company that make different salaries but in the same job. For a particular company for example, I have multiple positions for a same job, but each employee is making a different wage -- all of which fall within the range though. Am I able on the 9089 to list a singular wage being earned for a particular employee in that particular case as the offered wage? Or do I have to list a range on the 9089? And if I do, do I have to show the ability to pay the top or bottom of the range? Thanks again. I appreciate you taking the time to read this. Any insight you can provide would be really appreciated.
Answer: You can post one NOF for multiple jobs in the same salary range. In effect, you are posting for the same job, not for different jobs -- just the salary varies with years of experience. Then on the labor cert, since you posted a range, you can show the same range on Form 9089 Item "G". Although under some circumstances, it might be OK to put a wage range in the NOF and only a specific wage offer for an alien in Item "G", I think the more correct way is to put the range in "G" as well. Why? Because the job is offered in a range, and workers will be paid anywhere on the range. At the time of interview, the wage for the job will be somewhere on the range, depending on years of experience. In effect, there is no single, correct wage, only a range. Of course, the bottom level of the range cannot be lower than the prevailing wage determination. Beware that in your hypothetical, we are assuming that the job offered is actually the same in each case. In some situations, a difference in salary can reflect not only additional years of experience, but different jobs due to level of supervision and variation in job duties. In that case the job offer is not the same. I fear that your jobs may actually be different, so you must review the job duties and requirements carefully, before you may determine that the jobs are the "same". Finally, you asked about proving the ability to pay the wage. The requirement to prove the wage arises mostly when you file the I-140 Petition, although the issue may be brought up the CO as part of a labor certification determination. It seems clear that the Employer should be prepared to prove that it is able to pay anywhere on the range, however, if the alien is currently working in the job and earning a wage anywhere on the range, proof in the form of the alien's W-2, IRS 1040 or pay records should be sufficient to prove the Employer's ability to pay the wage to that particular beneficiary, even though the alien is not earning a salary at the highest end of the range.
Question & Answer:
Question: Can you please give an opinion as to the viability of the DOL accepting the employer's requirement that an applicant for a proffered job have at a minimum a "U.S. Bachelor's Degree" -- meaning the Employer will not consider foreign equivalency. (No employees have foreign bachelor's degrees). P.S. I love your BALCA summaries.
Answer: The Employer sets the requirements, not the DOL. There are limits and restrictions, of course, but they address the issue of minimum requirements, i.e., the requirements have to be minimum and must be normal in the U.S. The DOL permits Employers to add foreign equivalencies without special justification or documentation, and the PERM form clarifies this by providing a special question to this effect in Question H-9-A. "Is a foreign educational equivalent acceptable." If the Employer answers yes, it is broadening the field of applicants to include workers trained abroad. Conversely, if the Employer checks "No" to the same question, the Employer is limiting the field of applicants to include only workers who are trained in the U.S. As between the two, arguments can be made as to which is more or less restrictive.
My own view is that the position you take, to limit the pool of workers to those with an American diploma, is more in line with the DOL's philosophy to trim the job to its minimum requirements and give preference to American workers. The other option, to include foreign diplomas, broadens the minimum requirements, but appears to have as its purpose to include foreign-trained workers, i.e., foreigners! In your hypothesis, the Employer can require a Bachelor's Degree, because it is normal in the U.S. and should answer "No" to Item H-9.
Two questions received: 1. Does the employer have a duty to monitor the job order for applicants or do they wait for applicants to be re ferred to them? 2. Pre-PERM, employers don't need to contact applicants who clearly do not have any experience in the job offered. According to the PERM Book, the applicant should contact applicants with transferable that would enable them to learn the minimum skills on the job within a reasonable amount of time. If the employer stated minimum 3 months of experience for a housekeeper, should the employer consider an applicant who has no such experience but who worked as a cook or a waitress (and therefore might have transferable skills cleaning or cooking in a household)? Should an employer send rejection notice to an applicant who clearly do not meet requirements or not contact them at all?
The Employer has to place an ad in the state job bank for 30 days, however, job applicants normally will be instructed to send resumes to the employer. As a result, the Employer needs to review those resumes which it receives. Although the State Workforce Agency is responsible to place and maintain the job order for the Employer, the latter has the responsibility to check whether the state has made an error and to be certain that the job order ran for 30 days and in accordance with the regulations.
The duty to investigate a job applicant's qualifications would certainly apply if the job order was for a houseworker who has worked in alternate occupations such as a cook or waitress. Many of the houseworker's duties are subsumed in the alternate occupations. This would be especially true in those circumstances where the minimum requirements are only three months, and there is no one special skill that would require lengthy training time.
Rejection notices should rarely be sent. The better view is to contact each applicant to confirm whether the applicant's qualifications are those listed on the resume or whether the applcicant might have some related or alternate experience, education or training so as to be considered qualified for the job.
I received a question regarding substitution of an alien. In the fact pattern, the original alien was in the US and the application for labor certification was filed no later than April 30, 2001. The question is whether a new alien who arrived in the US after that date can be substituted and benefit from the same application. The answer is "Yes", and I would add the following comments: (1) Any alien who had the same qualifications at the time of the original filing qualifies for substitution. (2) For substitution, it does not matter whether the alien was or is legal or illegal or whether the alien was or is in the U.S. at any time. (2) A substituted alien does not benefit from the 245-i status of the original alien. Only the original alien can apply for adjustment of status under 245-i protection. (3) The priority date for a labor certification is the original filing date, even if a new alien is substituted. (4) It also does not matter if the alien was in the USat the time the application was filed. For example, an alien who was not in the US in April 2001, but who arrived some time after April 2001 illegally or who then became illegal can benefit from 245-i as well as substitution. (5) If the new alien is not protected by 245-i and has been illegal in the US more than 180 days, he or she can be substituted but cannot adjust status. In conclusion, 245-i and substitution are two different laws, and aliens need to qualify for each law independently and separately.