In most cases the first step to obtaining permanent residence through employment is labor certification.  This is where the employer tests the labor market to ensure that there are insufficient able, willing , qualified and available U.S. workers to perform the job for which a foreign national is being sponsored.

The first step to obtaining labor certification is to request a Prevailing Wage from the DOL.  There is no limitation to the number of Prevailing Wage Requests (PWR) that can be filed.  Therefore, it is possible to file the identical PWR and obtain different Prevailing Wage Determinations (PWD).  This is especially true if everything remains the same except that primary minimum requirements for the position are stated in the PWR form in one submission and alternative acceptable requirements are stated in a separate submission.

In a recent case, the Board of Alien Labor Certification Appeals (BALCA) held that where there have been two PWDs, the higher of the two wages must be used to support the PERM application.  (Matter of Take Solutions, Inc., 2010-PER-00907, 4/28/2011).  Although the Certifying Officer denied the application because the employer’s lower wage submission used the alternative requirements rather than the primary requirements, BALCA disagreed with its reasoning stating that “an employer can easily manipulate which job requirements are ‘primary’ or ‘alternative’.”  It simply concluded that the higher wage must be used so as not to adversely affect the wages and working conditions of US workers and so that the job opportunity would be open to the “broadest possible, minimally qualified applicant pool”.

BALCA noted that an employer has the option of appealing a PWD with which it disagrees but in the case at hand, the employer declined to do so.

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Author: Bradley Maged

I'm Brad Maged, an immigration lawyer in Boston, Massachusetts. I help people who want to live and work in the United States and companies that wish to employ them. This blog provides opinion and information on developments in immigration law. Thanks for reading!

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