When Do I Have to Be Paid the Prevailing Wage?”
“When Do I Have to Be Paid the Prevailing Wage?” and Other Common Questions in Employment-Based Immigration. The first part in a series on the employment-based immigration process.
“When does my employer have to start paying me the wage indicated on my labor certification?”, “Can I change jobs without starting all over?”, “What happens if I get laid off? These are just some of the question I get asked, probably several times a week, on average, by both the employers and the alien beneficiaries I represent in my immigration practice. They are all hoping to get a definitive, easy to understand answer from me. Unfortunately, however, the answers to just about all of the questions I get asked regarding the employment-based immigration process is, “it depends.” Most of the time, there is no “right” answer; the best I can do is give my clients what I believe to be the “best” answer given their particular circumstances. Also, my answers always start with an explanation of the employment-based immigration process, since a basic understanding of the process is usually necessary in order to understand my answer – so that’s where I’m going to start this series, with an overview of the employment-based immigration process, from inception to lawful permanent residency.
Obtaining Lawful Permanent Residency through a job offer
Although most people refer to this as a “labor certification” (or simply an “labor cert” or “LC”), the labor certification application is actually only the first of three separate applications that need to be filed in order to obtain a “greencard” through a job offer.
The Application for Alien Labor Certification is filed with the Department of Labor (“DOL”), not USCIS. The purpose of the application is to test the labor market to determine whether there are any U.S. workers both qualified and willing to work in the position being offered. This requires a test of the labor market and this is why labor certifications require advertising. If, after advertising for the position, no qualified U.S. workers apply, DOL will certify that no U.S. workers are available for the position. This entitles the employer to file an immigrant visa petition on behalf of the alien beneficiary – the second step in this three-step process.
The previous paragraph is a very, very short description of a very, very complicated process. In order to truly test the labor market, the job offer must be bona fide – in other words, it must be an actual job offer, for actual employment, to fill an actual need the employer actually has. One of the many things this means is the employer must offer, at a minimum, the “prevailing wage” for the position. The reason for this requirement is rather obvious. If, for example, an employer advertised for an Accountant, but was only willing to pay minimum wage, aliens who needed their greencards might apply, since it would be worth it to them to work for a substandard wage in order to get the immigration benefit. However, no U.S. workers would apply since minimum wage is far below the wage any qualified Accountant would be willing to accept. Hence, such a job offer is not bona fide since it does not truly test the U.S. labor market. This is why questions regarding when/whether/how to pay the prevailing wage often do not have straightforward answers. The goal is to ensure the job offer continues to appear bona fide, to both DOL and USCIS, and prevailing wage issues can have varying impacts on DOL’s and/or USCIS’s perception in this regard depending on the circumstances of the case.
In my next segment, I’ll discuss the prevailing wage issue in more detail, including how the prevailing wage for a labor certification case can differ from an H1B prevailing wage, and how that difference can present difficult questions for both the employer and the alien beneficiary when transitioning from H1B classification to Lawful Permanent Residency.
Mr. Nelson obtained both his Bachelor's Degree in Economics and his Juris Doctorate Degree from the University of Southern California. 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.
Published in Asian Journal, Saturday, March 21, 2009
