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Joel Stewart on PERM Labor Certification

More About Wage Ranges...

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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.

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