When people think of the prevailing wage, they usually have a specific dollar amount in mind, where the prevailing wage is a concept expressed in digits, not in words. However, the Prevailing Wage is also a Term of Art with a specific meaning within the context described in the PERM rule. In other words, the prevailing wage has two ways of being expressed. The first way is a calculation based on data on the internet resulting in a calculation in dollars and cents, and the other way is a legal term of art described in the PERM Regulation and encompassing the legal meaning of the phrase "Prevailing Wage" set forth therein.
Which of these interpretations may be used in the PERM process?
Recently a colleague asked us to assist to prepare a Motion to Reconsider where the meaning of the term "Prevailing Wage" was at issue. The Employer had obtained a prevailing wage determination from the SWA, but noted that it was required to put the "Prevailing Wage" on the Notice and therefore wrote the phrase "Prevailing Wage" on the form instead of the dollar amount obtained from the SWA.
Our first reaction was that the Employer had no legal argument, because he had not put the actual prevailing wage on the form. However, as our colleague wanted to request a reconsideration or appeal if possible, we decided to examine the issue in more detail.
Here's the argument we came up with:
The Final Determination states: The Notice of Filing does not list the wage offered."
As authority for this denial reason, the Final Determination cites: "Per 20 CFR 656.10(d)(4), the notice 'must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form)."
The denial reason is patently incorrect. As the Notice of Job Availability documents, the salary is plainly stated as "Prevailing Wage." It cannot be said that the Notice of Filing does not list the wage offered, because the wage offered is written clearly. It is the prevailing wage, an exact dollar amount that is a matter of public record.
There is no basis for denial in the authority cited by the Certifying Officer. The authority requires that the notice state the rate of pay for the job opportunity. The Notice of Filing in the instant case states the rate of pay. Where is the violation of the regulation? In fact, the regulation calls for the rate of pay to be announced in the notice.
The employer has complied with that regulation by stating the rate of pay shall be the "prevailing wage." There is nothing in the regulation that requires numerals to appear on the notice of filing for salary to be offered. The regulation calls for the rate of pay" to be stated. In the instant case, the rate of pay is clearly stated as "prevailing wage." There is no violation of the regulations here."
Obviously all things have their place in the heavenly scheme of things, and there is certainly a place for each expression of the prevailing wage: for the prevailing wage to be stated in a dollar amount or by a legal term of art. Since the dollar amount is a matter of public record, it is logical that one could refer to it using the phrase "prevailing wage" instead of the actual dollar amount......
What do you think?
Joel,
An additional point to support the argument you present is that a PERM may be used in connection with future employment. In many cases, the lag between PERM certification and adjudication of the underlying employment petition could be measured in years. It is reasonable to expect that the prevailing wage could vary in the intervening period. Since the intent of PERM is to protect against displacing US candidates and preventing downward pressure on wages, using the actual number on the application could result in an immigrant taking employment under conditions that run counter with the protections of the labor certification process.
Therefore, using "prevailing wage" would more logically tie the wage the employer is required to offer given the market conditions at the time the employment is actually commenced.
Incidentally, what ended up happening with the MTR?
JC
Posted by: JC | May 14, 2009 at 03:32 PM