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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

April 09, 2007

More about Substitution of Aliens

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 PERM regulations are silent on this point, but in the absence of any limitation, we must assume that PERM certifications are valid indefinitely as well. DOL seeks to rewrite the regulations to limit substitution and to provide for a limited period of validity. Consequently, unused labor certifications may go the way of pre-revolutionary Rubles. The regulations have not been published yet, but the fundamental issue in a labor certification determination is that the Secretary of Labor has made a finding that the employment of an alien in a particular job and in a particular place would not be harmful to US workers. The finding may be invalidated in case of fraud or misrepresentation under PERM and even for other reasons under PERM. DOL efforts to annul labor certifications might be seen as ultra vires, or one might make the argument that the new regulation should not be applied retroactively. The regulations have not yet been published, but we will look forward to input our colleagues on these questions."

April 08, 2007

What do H-1B's and PERM cases have in common?

Very little!

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.

By contrast, PERM cases represent the minimum requirements of the Employer, not the preferred qualifications, because it is well established that in labor certification proceedings, the employer can only require minimum requirements and not stipulate preferred qualifications like "Top 10% of the Class." Instead, PERM Employers must accept mediocre (minimally qualified) US workers. If a Bachelor's Degree is required, the Employer must accept applicants even if they are in the bottom 10% of the class unless the Employer can document that they cannot perform the job duties.

It should not follow that PERM requirements must always be the same as H-1B requirements. H-1B positions and PERM positions may be jobs with two different sets of requirements and, accordingly, with two different sets of salaries. As minimum requirements move from minimal to higher standards, salaries increase.

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 PERM cases may be lower than the salary in the H-1B case. The difference in salary paid to the alien may be offered as a wage range, where the lowest salary will match the lowest set of requirements (as in the PERM application) and the higher salary will match the higher set of requirements (as in the H-1B application). As explained in a previous blog posting, it appears that the alien may earn more than the higher end of the prevailing wage range, if the alien's seniority and experience already transcend the range of minimum requirements and corresponding wage range. See the blog posting below on the topic of prevailing wage.

If a degree is required for the H-1B visa, it need not be required for the PERM case, even if the job duties are identical. While a degree or its equivalent is required for an H-1B visa, and the employer may stipulate that degree as a preference, whether it be a bachelor's degree, a master's degree or a doctorate degree, the PERM job, in reality, must be offered to anyone who meets the minimum O*Net requirements. Accordingly, in the PERM case, the O*Net stipulates the minimum requirements and not the Employer. Since only the last two years of a Bachelor's Degree count as SVP for a PERM case and a full, four-year degree is required for an H-1B, the PERM case may arguably be offered to the same alien on the basis of two years of post-secondary education, whereas the alien is currently working on an H-1B offered to him or her because of higher educational qualifications such as a Master's or even a Ph.D. Since the SWA determines the prevailing wage, the wages for the PERM case would probably be lower than for the corresponding H-1B case. For example, if the H-1B stipulates a full, four-year Bachelor's Degree, Master's Degree, or higher, and the O*Net stipulates two years of post secondary education in marketing or two years of experience in the job offered, the SWA would calculate the wages for the H-1B based on the Degree preferred by the Employer and would then calculate the wages for the PERM case based on two years post-secondary experience, without factoring in the H-1B wage increment for a Bachelor's or Master's Degree requirement.

Since Employers' requirements must be mininum for a PERM case, salaries for PERM cases may be lower than salaries offered to H-1B workers, simply because the govenment requires the Employer to offer PERM jobs at minimal requirements. The same job commans two sets of requirements -- a real world, employer-driven set of requirements for H-1B workers (and for real workers in the real world), and a government-driven set of mediocre requirements for worker applying under PERM.

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 PERM cases.

Stated in other words, the less qualified you are, the more likely you are to meet PERM requirements and get an application approved! At the very high end of the range, of course, aliens may qualify for first or second preference petition as exceptional or extraordinary aliens. The anomaly is an inconvenience for employers who seek to employ aliens who are more than minimally qualified and less than truly exceptional or extraordinary.

More About Wage Ranges...

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.


About The Author

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.