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Joel Stewart on PERM Labor Certification

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  1. More about Substitution of Aliens

    by , 04-09-2007 at 04:24 AM (Joel Stewart on PERM Labor Certification)
    A commentator wrote: "So what will happen to old, unused, certified labor certs if this new rule goes into effect as proposed?"

    Joel Stewart's Response: The pre-PERM DOL regulations state that labor certifications are valid indefinitely. The new PERM regulations are silent on this point, but in the absence of any limitation, we must assume that PERM certifications are valid indefinitely as well. DOL seeks to rewrite the regulations to limit substitution and to provide for a limited period of validity. Consequently, unused labor certifications may go the way of pre-revolutionary Rubles. The regulations have not been published yet, but the fundamental issue in a labor certification determination is that the Secretary of Labor has made a finding that the employment of an alien in a particular job and in a particular place would not be harmful to US workers. The finding may be invalidated in case of fraud or misrepresentation under PERM and even for other reasons under PERM. DOL efforts to annul labor certifications might be seen as ultra vires, or one might make the argument that the new regulation should not be applied retroactively. The regulations have not yet been published, but we will look forward to input from our colleagues on these questions.
  2. What do H-1B's and PERM cases have in common?

    by , 04-08-2007 at 01:48 PM (Joel Stewart on PERM Labor Certification)
    Very little!

    H-1B's are temporary work visas offered to aliens whom Employers choose and prefer to hire. H-1B employers may choose any qualified aliens whom they wish with any set of requirements they need or prefer.

    By contrast, PERM cases represent the minimum requirements of the Employer, not the preferred qualifications, because it is well established that in labor certification proceedings, the employer can only require minimum requirements and not stipulate preferred qualifications like "Top 10% of the Class." Instead, PERM Employers must accept mediocre (minimally qualified) US workers. If a Bachelor's Degree is required, the Employer must accept applicants even if they are in the bottom 10% of the class unless the Employer can document that they cannot perform the job duties.

    It should not follow that PERM requirements must always be the same as H-1B requirements. H-1B positions and PERM positions may be jobs with two different sets of requirements and, accordingly, with two different sets of salaries. As minimum requirements move from minimal to higher standards, salaries increase.

    Thus, the Employer may hire an alien with a Master's Degree from the top 10% of his class as a Market Research Analyst for an H-1B visa, but if a PERM case is then filed for the same alien, the requirements would have to be lowered to meet O*Net standards, i.e., to include any candidate who meet rock-bottom, minimal requirements.

    With a lower set of minimum requirements, the salary for PERM cases may be lower than the salary in the H-1B case. The difference in salary paid to the alien may be offered as a wage range, where the lowest salary will match the lowest set of requirements (as in the PERM application) and the higher salary will match the higher set of requirements (as in the H-1B application). As explained in a previous blog posting, it appears that the alien may earn more than the higher end of the prevailing wage range, if the alien's seniority and experience already transcend the range of minimum requirements and corresponding wage range. See the blog posting below on the topic of prevailing wage.

    If a degree is required for the H-1B visa, it need not be required for the PERM case, even if the job duties are identical. While a degree or its equivalent is required for an H-1B visa, and the employer may stipulate that degree as a preference, whether it be a bachelor's degree, a master's degree or a doctorate degree, the PERM job, in reality, must be offered to anyone who meets the minimum O*Net requirements. Accordingly, in the PERM case, the O*Net stipulates the minimum requirements and not the Employer. Since only the last two years of a Bachelor's Degree count as SVP for a PERM case and a full, four-year degree is required for an H-1B, the PERM case may arguably be offered to the same alien on the basis of two years of post-secondary education, whereas the alien is currently working on an H-1B offered to him or her because of higher educational qualifications such as a Master's or even a Ph.D. Since the SWA determines the prevailing wage, the wages for the PERM case would probably be lower than for the corresponding H-1B case. For example, if the H-1B stipulates a full, four-year Bachelor's Degree, Master's Degree, or higher, and the O*Net stipulates two years of post secondary education in marketing or two years of experience in the job offered, the SWA would calculate the wages for the H-1B based on the Degree preferred by the Employer and would then calculate the wages for the PERM case based on two years post-secondary experience, without factoring in the H-1B wage increment for a Bachelor's or Master's Degree requirement.

    Since Employers' requirements must be mininum for a PERM case, salaries for PERM cases may be lower than salaries offered to H-1B workers, simply because the govenment requires the Employer to offer PERM jobs at minimal requirements. The same job commans two sets of requirements -- a real world, employer-driven set of requirements for H-1B workers (and for real workers in the real world), and a government-driven set of mediocre requirements for worker applying under PERM.

    In conclusion, the requirements for an H-1B are born out of the Employer's interest in bringing highly qualified workers to the workplace, presumably to gain a competivie advantage, while the requirements for PERM case are determined by government O*Net zones at minimal levels. Under the O*Net, even marginally qualified candidates must be considered as fully qualified to perform job duties in PERM cases.

    Stated in other words, the less qualified you are, the more likely you are to meet PERM requirements and get an application approved! At the very high end of the range, of course, aliens may qualify for first or second preference petition as exceptional or extraordinary aliens. The anomaly is an inconvenience for employers who seek to employ aliens who are more than minimally qualified and less than truly exceptional or extraordinary.
  3. More About Wage Ranges...

    by , 04-08-2007 at 10:20 AM (Joel Stewart on PERM Labor Certification)
    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.
  4. Substitution of Aliens

    by , 03-23-2007 at 03:23 PM (Joel Stewart on PERM Labor Certification)
    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.
  5. Wage Ranges for Labor Certification

    by , 03-23-2007 at 01:37 PM (Joel Stewart on PERM Labor Certification)
    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.
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