Joel Stewart Bloggings: April 4, 2007
by Joel Stewart
Editor's note: Here are the latest entries from Joel Stewart's blog.
March 23, 2007
In case you are unaware, the substitution rule should be coming to an end. The rule permits an employer to substitute a different or new alien in place of the original alien. Substitution takes place when the I-140 Petition is filed. The Employer appends information to the I-140 to provide information about the new alien who was qualified at the time the labor certification was first submitted to DOL. As an added bonus, the new alien benefits from the priority date of the original alien. Aliens who are not protected by Sec. 245-i cannot gain protection by being substituted -- they can only gain the benefit of the earlier priority date and an approved labor certification. Experienced practitioners are familiar with the substitution rule, however, there are many nuances yet to be explored. By the way, if you can't find the rule, stop looking in the DOL regulations. The substitution rule is in the INS regs, not DOL. In addition to substitution of aliens, there are related issues like substitution of petitioner. I'm going to return to these issues soon. Meanwhile, I welcome your comments on the new, proposed rule that will elminate substitution of aliens, and urge you to file your substitutions now. Remember, that a bare-bones application meets the definition of " properly filed " if it is signed and accompanied by a filing fee. Copious and hard to get documentation to prove the employer's ability to pay and the alien's qualifications can be submitted after the fact.
This is an interesting topic and little understood. Prior to
PERM, there was a mention of wage ranges in the TAG. In 1989, DOL gave their
official blessings 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, provided that the lower end of the
range met the prevailing wage. When GAL 1-02 came along, it also authorized
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 nationalís rate is usually left up to the employer
to determine based upon qualifications. DOL recommended that the actual amount
be inserted on the form, "typically be using an asterisk and inserting the
foreign nationalís wage in blank space in item 13." The
March 19, 2007
Welcome to my Blog!
I am looking forward to exchanging ideas and information
regarding employment based immigration, and especially regarding labor
certification. I will be happy to discuss issues regarding the pre-PERM and
Many thanks to ILW.COM for offering this forum!
-- Joel Stewart
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.