A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, March 9, 2010


In March 2005, a new rule governing the filing and processing of labor applications for the permanent employment of foreign workers took effect. This new rule, called PERM, was promulgated by the U.S. Department of Labor to completely revamp the certification process of labor applications. It was an online system with many new features and specific regulatory requirements. There were many questions and uncertainties about the new application process for several years. After more than five years of refinement and exchange between the government and the system users, many of the initial issues have been resolved. However, there are still a number of outstanding questions that have not been addressed by the Labor Department and must be answered by the Board of Alien Labor Certification Appeals (BALCA). Recently, the Board has issued several important decisions regarding the pre-filing recruiting process. There is a common thread in these decisions: that the recruiting materials must not contain any conditions that are less favorable than what is being offered to the foreign worker.

For example, the employer in Matter of Marcel Cleaners Inc. (Feb. 16, 2010) filed a labor application for a laundry supervisor. The State Workforce Agency determined the prevailing wage for this job should be $19.04 per hour and the employer was also willing to pay this wage to any eligible applicant. As part of the recruiting process, the employer must place a job order in the state job bank for this opening so that eligible American workers may apply. The job order showed a wage range of $18.00 to $19.50 per hour. The labor application was denied by a Certifying Officer on the ground that the wage offer in the SWA job order listed a wage that was less than the wage offered to the foreign worker. The employer disagreed with the decision and filed an appeal with the Board, arguing that they usually pay a range of wages to employees depending on the particular person’s work history and abilities. The Board affirmed the denial by pointing out that the lower end of the range of wage range was $1.04 less per hour than the prevailing wage, which contradicted the attestation that the employer would pay eligible workers a wage that equals or exceeds the prevailing wage. The Board continues to point out that the regulations expressly prohibit advertisements of a wage rate lower than the prevailing wage, and the state job order is considered an advertising tool.

Similarly, in another case decided on September 1, 2009, the Board held that, not only must the advertised wage be higher than the prevailing wage, it must also be equal to or higher than the actual wage offered to the foreign worker (Thomas L. Brown Associates, P.C.) Here, the employer posted a Notice of Filing, another pre-filing requirement, with a wage that is higher than the prevailing wage but lower than the actual wage offered to the foreign worker. The Board affirmed the denial, stating that the advertisements must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

Finally, in Noll Pallet & Lumber Co. (Dec. 16, 2009), the Board denied labor application for a similar but different reason. Here the employer is hiring a production worker and advertised a requirement for criminal and background checks. However, such a requirement was not listed in the labor application. Again, the Board noted that labor application advertisements must not contain wages or terms and conditions of employment that are less favorable than those offered to the foreign worker. Here, the advertisements contained a requirement for criminal and background checks, which was not imposed on the foreign worker. In other words, the advertisements contained conditions that are less favorable than those offered to the foreign worker.

These decisions illustrate once again that the labor certification process is extremely complicated and great care must be taken to ensure that all legal requirements are met. Sometimes a seemingly trivial matter could result in a denial of an application and cost additional time and money.

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