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Joel Stewart on PERM Labor Certification

PERM: Wage Offered V. Wage Paid

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I received an interesting question regarding the terms "Wage offered" v. "Wage Paid."



The question was how to interpret the "wage offered" to the employee at the time the 9089 is filed as being equivalent to the "wage paid" at the time of filing.


Granted that these are terms of art, we need only look to the definition of these terms as applied in the processing of PERM cases, and not in other types of DOL applications such as Labor Condition Attestations for H-1B visas. In fact, I recently reviewed the tape from the AILA Conference on DOL attestations where these terms were discussed in the context of back pay audits and penalties for Employers who had run afoul of these complex regulations. I realized that the meaning of these terms may be different when applied to H-1B visas as opposed to PERM applications.


For PERM applications, the meaning of "offered wage" may be found in a recent BALCA case, O'Brien & Van Stiphout, LLC, formerly known as Krupin O'Brien, LLC, 2010-PER 35, January 3, 2011.


The Employer in this case offered $70,000.00 per year on the PERM Form 9089 as the wage offer. The prevailing wage was only $41,413.00.


In the Notice of Filing, the offer was posted at $50,000.00 to $65,000.00 per year.


The DOL policy is that when the offered wage is more than the prevailing wage determination, the wage listed on the Notice of Filing must not be less than the wage offered to the alien. In this case, the Notice of Filing listed a wage range of $50,000-$65,000 per year, less than the offered wage of $70,000 per year to the alien.


Relying on the final PERM Rule, "Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System," 69 Fed. Reg. 77326, 7738 (Dec. 27, 2004) ("the employer must include in the notice the wage offered to the alien beneficiary at the time the application is filed"), the Board held that the Employer may not list a wage lower than that paid to the alien at the time the application is filed.


In this case, during the recruitment period, the Employer raised the alien's wage to $70,000.00, $5,000.00 more than the amount indicated on the Notice of Filing, and the amount of $70,000.00 was placed on the PERM Form 9089.


Hence, in the context of an application for PERM, the term "wage offered" means the wage or wage range offered throughout the PERM process (on the Notice of Filing, Form 9089 and any other advertisement or recruitment form used by the employer), and this "wage offered" may not be less than the wage actually paid to the alien (in case the alien is working in the position offered by the Employer).


On the PERM Form 9089, the prevailing wage, obtained from the Department of Labor, must be placed in Item F-5 "Prevailing Wage."


In G-1, the "Offered Wage" may be indicated in a range, or without a range, but the Board's decision clarifies that the "wage offered" (or "offered wage") must not be less than the wage paid to the alien.


The Board's decision seems to be defective in that the alien might be paid the higher amount of a wage range due to the fact that the alien possesses more experience than an entry level worker. If the minimum requirements were 5 years experience, and the alien had more than 5 years experience, say 10 years of experience, the alien would logically be entitled to earn a higher wage than entry level.


In the "wage range," the bottom level should be the entry level wage, and the higher level should be the higher limit for additional years of experience. However, the Board has not considered this result in its decision, because the PERM regulation does not contemplate an "experience range" to mirror the "wage range."


In the instant decision, the Board looked at the wage range, but did not consider the alien's experience as an experience range.


The labor certification process has long held that Employers must consider minimally qualified workers and not more highly qualified workers to be acceptable to perform the job duties. The system promotes mediocrity rather than superiority in the work force, a fact which is now becoming known to the American people as other countries start to move ahead of the US in terms of having a qualified workforce. President Obama mentioned this gap in qualifications in his recent State of the Nation speech, and Television journalists have just completed documentaries on the reverse brain drain, i.e., highly qualified alien workers are starting to leave the United States and return to their home countries, such as India and China.


The decision also does not mention what would happen if the wage range were listed as depending on experience (DOE) with the 30-day job order at the State Workforce Agency. Here the Employer might use the term "DOE" to indicate that workers with higher qualifications could be paid more than the wage offer. This is true because the wage offer must be tailored for a minimally qualified worker.


While the State Workforce Agencies (and industry practice) routinely recognize that wages should depend on experience, the PERM process does not.


 


 

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