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Joel Stewart on PERM Labor Certification

PERM "Wage Offer" to Whom?

Rating: 4 votes, 5.00 average.

There is a question on the PERM Form that inquires "Wage Offer". The question, located in Part G on Form 9089, is different from another question, "Wage Range." There is also a third question, "Prevailing Wage," which may be neither of the above.

Because of the ambiguity in these questions on the PERM Form 9089, Employers are receiving PERM denials!

The PERM process requires the Employer to file a 30-day job order in the State where the job offer is located. These job orders are processed by the State Workforce Agency (SWA).

In each state, the SWA uses a different, unique Form, with its own questions about the job offer. In many states, for example, Employers are prompted to list wages in wage ranges or make comments about the wages.

The idea is that the wage in a PERM case is calculated by the Department of labor and must be based on the employer's actual requirements, which in turn must be listed as minimum requirements.

The concept of minimum requirements is part of the labor certification process. The official DOL policy is that,  in a labor certification proceeding, employers may require only minimally trained workers and not well trained workers, and in the recruitment process, employer's must accept minimally trained US workers to fill the job, even if the alien worker is better qualified.

In fact a BALCA panel once held that if an employer wants a well trained worker, the Employer must seek that worker from a pool of US workers, and not from a pool of foreign workers.

When applying the concept of minimum requirements to Prevailing Wage, it becomes apparent that workers who meet more than the minimum requirements may be paid more than a minimally trained worker because they are better qualified.

As mentioned above, on the 9089 Form, the Employer must list the prevailing wage (determined by the DOL on the basis of minimal requirements), a wage range (the wage range for workers with minimal or better than minimal qualifications), and a wage offer.

Unfortunately, the forms used by the federal and state departments of labor do not easily adapt to the real world of worker recruitment, and the distinction between these concepts (prevailing wage, minimally qualified wage, and more than minimally qualified wage) is not clearly defined in the forms used by the government agencies.

One interpretation of the question "wage offer" on Form 9089 is that it means the wage offered in the particular job offer, because the employer chooses to offer a wage higher than the prevailing wage calculated by the DOL.

Another interpretation is that the "wage offer" should be the "actual wage offer," i.e., the wage offered to the alien. The question "wage offer" may also be used to represent the "actual wage offer", which refers to the wage offered to the alien.

The Employers do not generally encounter any problems with their PERM applications, if they put on Form 9089 the prevailing wage as calculated by the DOL in the "prevailing wage" box, and a higher than minimal wage in the "wage offer" box, as well as a "wage range" which may range from the prevailing wage calculation to a higher wage.

However, when the employer places a 30-day job offer with the State Workforce Agency, the SWA requires the Employer to fill out a form, and this form may request the wage in terms that do not correspond to the PERM Form 9089.

In one state, for example, the Employers are prompted to put not the "prevailing wage" but the "wage" or "wage offer." In another box, the Employer may put "DOE" which means, "depending on experience."

Logically, the DOE designation clarifies to job applicants that the wage offer may vary depending on the qualifications of the applicant.

However, in cases where the Employer put the wage for a minimally qualified alien, along with DOE, and the alien is earning more than the wage for a minimally qualified alien, due to better than minimal qualifications, the DOL may deny the application. Apparently, the DOL will interpret the "wage offer" on the 9089 to mean the minimal wage offer and not necessarily the wage paid to the alien, and the Employer may have put the entry level wage on the SWA Form.

In order to avoid this, the "wage offer" on the 9089 Form must be the same as the "wage offer" on the SWA Form, and the addition of "DOE" on the SWA Form would mean that the actual wage offer could be higher than the wage offer stated in the 30-day job order, depending on the applicants' qualifications.

There is no place on the 9089 Form to put "DO".

If you receive a denial because the Certifying Officer compared the PERM Form "wage offer" and found it to be different from the "wage offer" on the SWA Form, a motion to reconsider is appropriate, explaining why the two wages are different. The DOL officer believes that the Employer is discriminating against US workers, but this might not be true, if the Employer is simply compensating better qualified workers because they possess more than the minimal requirements.

A Motion to Reconsider will offer the Employer an opportunity to explain that the job offer and the wage depend on experience, and that the question "wage offer" on the PERM form does not clarify whether it is the wage paid to the alien or the wage paid to a minimally qualified worker.

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