Mr. Lee's Article - "Important Developments in Labor Certification Applications, Part II" as published in World Journal on March 13, 2011By Alan Lee, Esq.† Part 1 dealt with in the amount of detail which had to go into labor certification advertising and what was considered an employer ad. BALCA ("Board of Alien Labor Certification Appeals" or "Board") decided that an employer ad covered not only newspaper and journal advertisements, but also other media "ads" such as internet postings and the employer's own website postings, etc. Part 2 explains BALCA's view of the wage which must be placed on the labor certification job order and notice of filing, and asks whether the view is realistic where the alien is already on the job. 2. BALCA decisions force labor certification employers to offer same wage to U.S. worker applicants as offered to sponsored aliens instead of lower prevailing wage for area as determined by the Department of Labor ("DOL"). Aliens may have been with employer for years and earned raises - is this logical? BALCA in O'Brien and Van Stiphout, LLC (1/3/11) and other recent cases (SDE Inc., dba Digital Ink (10/27/10); Alum-A-Lift, Inc. (1/3/11)) has given the Board's firm view on what wage - the prevailing wage or the offered wage to the alien - can be used in advertising for U.S. workers in a labor certification application. The controversy arises where the sponsored alien is making more than the prevailing wage for the area as determined by DOL. It should be noted that an alien may have a higher wage through being with the employer for a long time and garnering raises over the years, or he/she may have demonstrated prized skills or brilliance over a shorter period of time for which an employer would be interested in paying more than the prevailing wage. On the other hand, an employer would not want to pay that same enhanced wage to a person just coming onto the job. The twin difficulties are that, in a general labor certification application process which tests the availability of U.S. workers for a job opportunity, DOL regulations do not allow an employer to reject U.S. workers not equally qualified as the alien instead mandating the employer to accept only minimally qualified U.S. workers; and they force the employer to offer U.S. workers no less favorable wages or terms and conditions of employment than those offered to the alien. Lawyers have argued that the employer should be allowed to offer the prevailing wage of the area to U.S. workers instead of a wage above that level as the latter does not reflect what an employer would normally pay to an incoming worker meeting the minimum requirements. For example, Tire Co. Inc. hires John in 2008 at the wage of $45,000 per year under H-1B status when the prevailing wage for the area as determined by DOL's OES system is $45,000 per year. [The Department of Labor, Bureau of Labor Statistics (BLS) provides wage data collected under the Occupational Employment Statistics (OES) program for use in the Foreign Labor Certification process. The wage data is available on the Foreign Labor Certification Data Center Online Wage Library (OWL) at http://www.flcdatacenter.com/]. Through his job performance, John has received salary increases so that his present pay is $65,000 per year. John asks the company to sponsor him for the green card, and the company agrees, hires an attorney, and begins the labor certification process. The lawyer explains that under DOL regulations, the company can normally only require U.S. workers to meet the minimal level of education and experience which it required for the job at the time of John's hiring. It also cannot require the U.S. workers in most situations to possess experience or skills that John acquired working for Tire Co. Inc. Looking at John's qualifications at the time of hire, he held a bachelor's degree plus two years of relevant experience. Examination of the company's present pay scale for new hires with those requirements reveals that the company would currently pay $47,500 per year. The attorney then requests a prevailing wage determination from DOL, which comes back with $46,500 per year with those requirements. The company advertises the job opportunity to U.S workers in its posting notice (notice of filing) and state workforce agency (SWA) job order showing the wage rate of $47,500 per year instead of $65,000 per year only to receive a denial from DOL. In the real world outside of labor certification processing, it makes absolute business sense for the employer to only pay the prevailing wage for workers under these conditions. Why should it be forced to pay a premium for a U.S. worker which in most cases would be undeserved just because it is sponsoring an alien for a labor certification? Yet BALCA decided in O'Brien & Stiphout et al that the wage to be offered in the job posting must be the offered wage to the alien and not the prevailing wage if the offered wage exceeds the prevailing wage. In O'Brien & Stiphout, the offered wage to the alien was $70,000 per year and the prevailing wage $41,430. The posting listed the salary as between $50,000-$65,000 per year, a wage range which met the prevailing wage level but was less than that of the alien. Hopefully DOL can recognize the inherent unfairness here and come forth with a regulation providing for exceptions to advertising at the alien's wage when over the prevailing wage where an employer can show by a preponderance of evidence the business related reason(s) for which the alien's salary exceeds the prevailing wage. An example of possible wording would be, "The employer will not be seen as offering a wage less favorable to U.S. workers than it offers to the alien where the employer demonstrates that its wage at the time of alien hiring was no more than 5% over the wage it offered to U.S. workers with the same level of education and experience. If there were no such U.S. workers at the time, the employer will not be seen as violating the regulation where it demonstrates that its wage offer to the alien was no more than 5% over the prevailing wage." [ To be continued] Copyright 2011 Thomson Reuters.
† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. |
Copyright © 2003-2011 Alan Lee,
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