When Do I Have to Be Paid the Prevailing Wage? Part II
“When Do I Have to Be Paid the Prevailing Wage?” and Other Common Questions in Employment-Based Immigration. Part II
“When Do I Have to Be Paid the Prevailing Wage?” and Other Common Questions in Employment-Based Immigration. Part II In last week’s article, I briefly described the process of obtaining a “greencard” through a job offer. One of the most fundamental requirements in this process is presenting and maintaining a “bona fide” job offer throughout this process, and one of the most fundamental components of the bona fide job offer is the prevailing wage. If an employer fails to offer the prevailing wage for the position being offered, the Department of Labor (“DOL”) or U.S. Citizenship and Immigration Services (“USCIS”) could conclude that the job offer is not bona fide and, therefore, deny the case. The solution would appear simple: simply offer the prevailing wage immediately and continuously throughout the process. However, in practice this is not quite so easy. Not only must the prevailing wage be offered, but the employer must also demonstrate to the DOL and the USCIS that the wage has been offered. The latter is significantly more complex and begins with the inclusion of the wage in certain aspects of recruitment process preceeding the filing of the application for labor certification; and the actual certification of the wage on the DOL’s Labor Certification. How does the employer show that the wage is being offered? The employer must demonstrate that the prevailing wage has been offered by actually paying the prevailing wage or by showing it is both willing and able to pay. Actual payment of the prevailing wage is sufficient, by itself, to show the wage is being offered. However, if the employer chooses not to pay the prevailing wage at any time while the application is pending, that employer must show that it was still able to pay it. This is often referred to as the “ability to pay” issue and is the reason for many, if not most, denials. Although company tax returns are primary evidence of ability to pay, for many small companies the net profits reported on their returns do not always accurately reflect their actual ability to pay the wage. In recent months the ability to pay issue has become a frequent subject of USCIS Requests for additional Evidence (RFE). Actually paying the employee the prevailing wage makes responding to these RFEs simple. If, on the other hand, the employee is not being paid the prevailing wage, and if the company’s tax returns also do not show ability to pay, proving ability to pay becomes much more difficult and, perhaps, depending on the evidence available, impossible under current USCIS standards. What if my H-1b wage is different? If actual payment of the prevailing wage is sufficient, by itself, to establish ability to pay, why not simply tell the employer to start paying the prevailing wage the moment it is established? Well, one reason is that employers, despite my wishes to the contrary, don’t always do what I advise them to do. More importantly, however, paying the prevailing wage for labor certification purposes might violate the beneficiary’s current status. Perhaps the beneficiary is out of status and not authorized to work. If that is the case, the employer cannot pay the beneficiary the prevailing wage – or, in fact, any wage at all, without violating U.S. law. If the beneficiary is authorized to work for the employer as an H-1b alien, their H-1b status is based on a separate prevailing wage determination that is not, necessarily, the same as the prevailing wage determination made for labor certification purposes. This could be due to differences in the requirements for the H-1b position versus the labor certification position, the passage of time between the two prevailing wage determination, or other factors. However, regardless of the reason, if the two wages are different, paying the labor certification prevailing wage could potentially violate the H-1b professional’s status – something that should not be done without, at the very least, careful consideration. So again, although paying the labor certification prevailing wage immediately solves the labor certification issue, it may create other issues. The obligation to show that the employer has the ability and willingness to pay the prevailing wage continues through the entire petition process until permanent residency is granted to the employee beneficiary. USCIS can raise the issue any time and the employer must be able to demonstrate ability and willingness from the date the priority date was established by filing the labor certification to the present; even if they already demonstrated this at a previous point in the petition process. The willingness to pay issue will be the focus of next week’s segment, but by now it should be becoming clear that, although actual payment (or receipt) of the prevailing wage does make some things easier, the timing of this is important and it may not be the appropriate solution in a particular case, depending on where it is in the adjudication process. Mr. Nelson obtained both his Bachelor's Degree in Economics and his Juris Doctorate Degree from the University of Southern California, one of the top Universities in the United States. He has been practicing law since 1990 and immigration law since 1994. A member of the American Immigration Lawyers Association, the Los Angeles County Bar Association, and the American Bar Association, Mr. Nelson is admitted to practice before all courts in the State of California, the United States District Courts for the Northern, Central, and Eastern Districts of California, the United States Court of Appeals for the Ninth Circuit and the United States Supreme Court.
