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This is an interesting topic and little understood. Prior to PERM, there was a mere mention of wage ranges in the Technical Assistance Guide. This gave little impetus to the use of wage ranges, since the TAG was not followed by DOL in many instances, nor did it have the force of law. In 1989, DOL gave their official blessings to wage ranges stating that Employers may use DOQ (Depending on Qualifications) or DOE (Depending on Experience) in advertisements, and BALCA followed en suite approving them as well. Both ETA and BALCA provided that the lower end of the range must meet the prevailing wage (may not be lower than the prevailing wage). When GAL 1-02 came along, it also postulated wage ranges and even advised that 95 percent of the prevailing rate could be used as the bottom end of the range. But what about the top? GAL 1-02 went on to say that the top may be whatever figure the employer offers and that the "foreign national's rate is usually left up to the employer to determine based upon qualifications." DOL recommended that the actual amount being paid to the alien be inserted on the form "typically using an asterisk in Item 13 and inserting the foreign national's wage in blank space on the form."
The PERM rules have made range wages official. There is even a special place on form 9089 to indicate a wage range, and the salary offered to the alien also has to be on the PERM form. But recently a question arose whether the salary offered to the alien has to be equal to the high end of the range or whether it could be higher than the high end of the range, as long as it is listed on the PERM form. Several writers have indicated that the alien can not be offered a salary higher than the high end of the wage range, but these writers have not cited legal authority for that point of view. While at first glance it seems that the alien should not be higher than the end of the range, the absence of any clear rule on that point suggests that the opposite might be true. The wage range issue arises out of the search for prevailing wage determinations and their relationship to minimum requirements. For example the terms "range" and "wage range" are standard buzz words used to determe prevailing wages, define SVP ranges, and define educational, experience and training for O*Net Job Zones. Given that under PERM an application may be approved with the alien's wage being higher than the wage range listed on the same PERM form, we need to revisit the meaning of the terms of these terms. The regulations do require the wage or wage range be listed in the "Notice of Filing" and further state that these wages should be the same as the ones listed in the ad. On the other hand, there is no requirement to put the wages in the ad. Due to the complex nature of this topic, I plan to revisit it, but I am looking forward to your comments and opinions to get a better understanding about the relationship between the prevailing wage, the wage range, and the wage offered to the alien.
Welcome to my Blog!
I am looking forward to exchanging ideas and information regarding employment based immigration, and especially regarding labor certification. I will be happy to discuss issues regarding the pre-PERM and PERM laws, including Regular Labor Certification Processing, Reduction in Recruitment, Backlog Elimination Centers, PERM Applications, BALCA, Prevailing Wage and Employment Based Preference Categories.
Many thanks to ILW.COM for offering this forum!
-- Joel Stewart
JOEL STEWART practices exclusively in the area of immigration law. Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is fluent in Portuguese, Spanish, French, and Russian. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters as well as a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart is the editor of The Perm Book, the definitive authority on the subject of PERM processing of labor certifications, and the editor/author of The Perm Quarterly, a professional journal that compiles and develops updated information on PERM for attorneys and employers. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil. In addition to supervising an exchange program for foreign law students to work and study in the U.S., Mr. Stewart has also lectured at law schools in Florida and Russia, and heads the immigration committee for the Dade County Bar Association in Miami, Florida.
Welcome to Joel Stewart's Blog.