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Joel Stewart on PERM Labor Certification

Wage Ranges for Labor Certification

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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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Comments

  1. Anonymous's Avatar
    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 offered by "Anonymous" 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) A more persuasive argument is the fact that 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. 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 much 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. To state it another way, a person with years of seniority and higher wages would not be considered as models for new hires, as he/she has graduated far beyond that level of a newly hired person.


  2. Legally Stucked's Avatar
    I don't think an employer would prefer to get all the hassle of employing an alien, hiring a lawyer, and all the INS painful process, and besides all of that pay a higher wage if it were possible to find US candidates fit for the jobs.
    On the other hand, America is going to loose a lot of opportunities if the immigration law is not revised.
    I can'n believe that illegals are going to get work permits, and H4, F2, and others can?t work. Many of them are highly prepared people that are being wasted.
    Who is going to sponsor H1B visas in the future? If you find a job today, you'll be able to work on Oct. 01/2008, if you are lucky enough to file in a year.
    I'l finish my MBA next year and I'm wondering what my future will be, just because my husband is an EB3 I-140 wait-forever-for-greencard alien.
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