Joel Stewart Bloggings: April 11, 2007
by Joel Stewart
Editor's note: Here are the latest entries from Joel Stewart's blog.
April 09, 2007
A commentator wrote:
"So what will happen to old, unused, certified labor certs if this new rule goes into effect as proposed?"
Joel Stewart's Response:
"The pre-PERM DOL regulations state that labor
certifications are valid indefinitely. The new
April 08, 2007
H-1B's are temporary work visas offered to aliens whom Employers choose and prefer to hire. H-1B employers may choose any qualified aliens whom they wish with any set of requirements they need or prefer.
It should not follow that
Thus, the Employer may hire an alien with a Master's Degree from the top 10% of his class as a Market Research Analyst for an H-1B visa, but if a PERM case is then filed for the same alien, the requirements would have to be lowered to meet O*Net standards, i.e., to include any candidate who meet rock-bottom, minimal requirements.
With a lower set of minimum requirements, the salary for
If a degree is required for the H-1B visa, it need not be
required for the
Since Employers' requirements must be mininum
In conclusion, the requirements for an H-1B are born out of the
Employer's interest in bringing highly qualified workers to the workplace,
presumably to gain a competivie advantage, while the
requirements for PERM case are determined by government O*Net zones at minimal
levels. Under the O*Net, even marginally qualified candidates must be
considered as fully qualified to perform job duties in
Stated in other words, the less qualified you are, the more
likely you are to meet
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.
Joel Stewart works exclusively in the area of immigration law. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil. He is a partner at the firm of Fowler-White-Burnett in Miami, Florida.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.