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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

March 23, 2007

Substitution of Aliens

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.

Wage Ranges for Labor Certification

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 PERM rules have made range wages official. There is a special place on form 9089 to indicate a wage range, and the salary offered to the alien also has to be on the PERM form. But recently a question arose whether the salary offered to the alien has to be equal to the high end of the range or whether it could be higher than the high end of the range, as long as it is listed on the PERM form. Several writers have indicated that the alien can not be offered a salary higher than the high end of the wage range, but these writers have not cited legal authority for that point of view. While at first glance it seems that the alien should not be higher than the end of the range, the absence of any clear rule on that point suggests that the opposite might be true. Furthermore, the wage range is closely linked to the concepts of prevailing wage determinations and the employer's minimum requirements. For example the term range and ranges are freely used in determining prevailing wages, defining SVP ranges, and in defining the range of education, experience and training for O*Net Job Zones. Given that under PERM an application may be approved with the alien's wage being higher than the wage range listed on the same PERM form, we need to revisit the meaning of the terms "wage range", "minimum requirements", "proffered wage", "actual wage" as they may be defined and measured by the regulations. The regulations do require the wage or wage range be listed in the "Notice of Filing" and that these wages should be the same as the ones listed in the ad, however, there is no requirement to put the wages in the ad. Due to the complex nature of this topic, I plan to revisit it, but I am looking forward to your comments and opinions to get a better understanding about the relationship between the prevailing wage, the wage range, and the wage offered to the alien.

March 19, 2007

Welcome note from Joel Stewart!

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 PERM laws, including Regular Labor Certification Processing, Reduction in Recruitment, Backlog Elimination Centers, PERM Applications, BALCA, Prevailing Wage and Employment Based Preference Categories.

Many thanks to ILW.COM for offering this forum!

-- Joel Stewart


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.