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In a previous post I posed the question of an alien earning more than the higher end of a wage range. A visitor commnted, "What about the argument that if actual wage offered to the alien is higher than the high end of the range which was on the form and on the job posting, then US workers have not been put on notice about the actual wage, and hence maybe some US worker who may have applied given the attractive wage, may not have applied, thus resulting in an imperfect test of the job market?"
Answer from Joel Stewart:
Responding to the comment whether there would be an imperfect test of the job market if the alien is paid more than the top of the wage range, I offer two responses: (1) The job market is properly tested, from a legal point of view, if the employer follows the regulations, i.e., does not violate the regulations, and complies with the substantive requirements to document a bona fide recruitment process. (2) The wage range is tied to the minimum requirements. As the wage is offered in a range, the minimum requirements are also stated in a range. In a typcal job offer, both the wage range and the range of requirements relate to a newly hired person. Presumably the alien was hired within that range, but then graduated to a higher wage based on seniority. If the Employer offers the job to American workers on the same terms as to the alien, within the stated wage and experience range, then the market has been properly tested. An example would be a wage range for new hires with 3-5 years experience. The alien was hired at that range when he or she began working on an H-1B visa. Five years later, the alien has risen to a more senior level, with 8-10 years experience, but still occupies the same position. New hires would be offered the position on the same terms and conditions as the alien, but the alien who has more years of seniority would earn wages higher than those paid to a newly hired person, whose lesser salary would depend on less experience, education and training.
In case you are unaware, the substitution rule should be coming to an end. The rule permits an employer to substitute a different or new alien in place of the original alien. Substitution takes place when the I-140 Petition is filed. The Employer appends information to the I-140 to provide information about the new alien who was qualified at the time the labor certification was first submitted to DOL. As an added bonus, the new alien benefits from the priority date of the original alien. Aliens who are not protected by Sec. 245-i cannot gain protection by being substituted, however, they can gain the benefit of the earlier priority date of an approved labor certification. Experienced practitioners are familiar with the substitution rule, however, there are many nuances yet to be explored. By the way, if you can't find the rule, stop looking in the DOL regulations. The substitution rule is in the INS regs, not DOL. In addition to substitution of aliens, there are related issues like substitution of petitioner. I'm going to return to these issues soon. Meanwhile, I welcome your comments on the new, proposed rule that will elminate substitution of aliens, and urge you to file your substitutions now. Remember, that a bare-bones I-140 meets the definition of a " properly filed " petition, if it is signed and accompanied by a filing fee. Copious and hard to get documentation to prove the employer's ability to pay and the alien's qualifications can be submitted after the fact.
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.