OFLC Suspends PERM Denials Based on Ads Describing Salary as “Competitive”02 Jan 2017
The Office of Foreign Labor Certification (OFLC), which is part of the U.S. Department of Labor (DOL), has notified the American Immigration Lawyers Association (AILA) that it has suspended issuing PERM denials based on recruitment efforts that use terms such as “depends on experience,” “competitive,” or similar language to describe the offered salary. This stems from a Board of Alien Labor Certification Appeals (BALCA) case, Matter of Tek Services, which concluded, because the regulations do not require that the salary be mentioned at all in recruitment ads, the use of language such as competitive salary is permitted.
Background on Recruitment Requirements
A major component of the PERM labor certification (LC) process involves mandatory, highly regimented recruitment efforts by the sponsoring employer. The PERM LC will be certified only if the employer can show that no qualified U.S. worker was willing to take the position being offered to the foreign national. As part of this recruitment phase of the PERM process, the employer must run advertisements that provide certain details about the proposed position. The proposed salary can be included in the ads, but this is not required.
DOL’s Reasoning to Deny PERMs in Matter of Tek Services
In Matter of Tek Services, the employer placed an ad that stated the position paid a competitive salary, without listing the actual salary amount. The DOL acknowledged that the regulations do not require that the salary be listed in the ad, but still denied the case based on the competitive salary language:
Listing “competitive salary” as the salary on the newspaper advertisements places a potential obligation on the U.S. worker to reasonably determine the wage rate for the position. The term “competitive salary” is also a relative term that can reflect the employer does not want to announce the salary in its advertisements. Further, listing “competitive salary” in the advertisements prevents potentially qualified U.S. applicants from making an informed decision on whether the individual would be interested in the actual job opportunity, and may deter a number of such applicants from applying. The wage listed as “competitive salary” places too much burden on the U.S. applicant to determine what the position will pay, and thus can be a deterrent to the employer receiving applications from qualified U.S. workers.
BALCA Reverses DOL Decision
BALCA did not agree with the DOL argument, noting as follows:
We are unpersuaded by the [DOL]’s suggestion that the competitive salary language creates a “burden” on potential applicants that they identify the competitive wage; a burden which might discourage workers from applying or that the reference to a competitive wages somehow could prevent an individual from making an “informed decision” about whether they would be interested in the position. Potential applicants are unburdened since they are under no obligation to identify a competitive wage before they apply. As to making an informed decision, the competitive salary language is certainly more informative than an advertisement that is totally silent regarding the wage, an approach perfectly permissible under the regulation.
Suspension of Denials Based on “Competitive Salary” and Similar Language
Based on the BALCA ruling, the DOL has suspended issuing denials based on ads that do not list the salary, but state competitive salary or related language. More detail is expected in the coming weeks.
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