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Bloggings: June 19, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

June 18, 2007

Reflections on Attorney Fees

While in Orlando, I discussed some theories that might apply to the impending ban on attorney fees for labor certifications after July 16, 2007. The ban prevents aliens from paying attorney fees to cover services performed for the Employer. The ban actually applies to agents, representatives, attorneys and all costs involved in the labor certification (PERM) process.

Theories set forth to comply with the new rule include the following: (1) Separate the attorney fees and costs for labor certification processing and bill them entirely to the Employer, while not billing anything to the alien. The PERM rule suggests that the preparation of a PERM case takes about one hour. The client (Alien) would be billed for the remainder of the case including the petition and the adjustment of status. (2) Represent the Alien and not the Employer, provided that the Employer seek representation by an agency such as "The Perm Center" instead of an Attorney. The Perm Center would simply perform those duties suggested by the PERM regulations: (a) Represent the Employer as Agent in Part "E" and (b) Sign as Preparer if submitting the form to DOL. Either or both of these agency options may be omitted. (3) Represent the alien and not the Employer, provided that the alien's attorney would prepare the application forms and send them to the Employer's attorney (not necessarily an immigration lawyer) who would then forward them to the Employer for signature. (4) Represent the alien and not the Employer but deal directly with the Employer on the assumption that a lawyer may represent one party without representing the other, and still deal with both directly, provided the non-represented party consents. In all the above (except number one) it is assumed that the Employer will sign a waiver of representation or acknowledgement that the attorney represents the alien and not the Employer). (5) Collect funds and deposit them in a trust account, pending a court decision from pending litigation to permit an attorney to represent both the Employer and the Alien and be paid by either one or by both.

I would appreciate receiving comments, questions, and queries on issues of practicality, legality and ethics relating to any of the above.

June 09, 2007

Conforming Wage Ranges on Posting & 9089

Question: I hope you might be able to provide me some guidance. When listing a range on a Notice of Filing (NOF), is it necessary to also indicate the same range on the 9089, or can you simply give the specific salary for that particular case, so long as it falls within the range on the NOF? If you do have to mirror the range, do you have to show ability to pay for the highest wage on the range?  It was my understanding that if there was a salary range for a particularly position, then that range could be reflected on the NOF and you wouldn't have to do individualized postings for each employee of a company that make different salaries but in the same job. For a particular company for example, I have multiple positions for a same job, but each employee is making a different wage -- all of which fall within the range though. Am I able on the 9089 to list a singular wage being earned for a particular employee in that particular case as the offered wage? Or do I have to list a range on the 9089? And if I do, do I have to show the ability to pay the top or bottom of the range? Thanks again. I appreciate you taking the time to read this. Any insight you can provide would be really appreciated.

Answer: You can post one NOF for multiple jobs in the same salary range. In effect, you are posting for the same job, not for different jobs -- just the salary varies with years of experience. Then on the labor cert, since you posted a range, you can show the same range on Form 9089 Item "G". Although under some circumstances, it might be OK to put a wage range in the NOF and only a specific wage offer for an alien in Item "G", I think the more correct way is to put the range in "G" as well. Why? Because the job is offered in a range, and workers will be paid anywhere on the range. At the time of interview, the wage for the job will be somewhere on the range, depending on years of experience. In effect, there is no single, correct wage, only a range. Of course, the bottom level of the range cannot be lower than the prevailing wage determination. Beware that in your hypothetical, we are assuming that the job offered is actually the same in each case. In some situations, a difference in salary can reflect not only additional years of experience, but different jobs due to level of supervision and variation in job duties. In that case the job offer is not the same. I fear that your jobs may actually be different, so you must review the job duties and requirements carefully, before you may determine that the jobs are the "same".  Finally, you asked about proving the ability to pay the wage. The requirement to prove the wage arises mostly when you file the I-140 Petition, although the issue may be brought up the CO as part of a labor certification determination. It seems clear that the Employer should be prepared to prove that it is able to pay anywhere on the range, however, if the alien is currently working in the job and earning a wage anywhere on the range, proof in the form of the alien's W-2, IRS 1040 or pay records should be sufficient to prove the Employer's ability to pay the wage to that particular beneficiary, even though the alien is not earning a salary at the highest end of the range.


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.