PERM Denial Upheld for Pay Raise During Recruitment Process
Pay raises in the middle of the PERM process can be tricky. What do you do if you’ve issued a pay raise to the PERM beneficiary between recruitment and filing the PERM application?
A recent BALCA decision hit on this issue. In Matter of DVB Transport LLC, 12/6/16, the Board agreed with the Certifying Officer (CO) that the employer violated federal regulations by listing a $206,000 salary on the Notice of Filing (NOF) and a higher salary of $215,000 on the PERM application. Specifically, the Board stated that federal regulations prohibit an employer from advertising wages or terms and conditions of employment that are less favorable than those offered to the beneficiary of the application.
One of the requirements to filing a PERM application is that a Notice of Filing be posted for 10 consecutive business days at the place of employment. Among other things, the wage must be listed on the NOF and cannot be less than the prevailing wage. If the beneficiary earns a wage higher than the prevailing wage, the higher wage must be listed.
DVB Transport stated that it accurately reflected the beneficiary’s salary of $206,000 on the NOF at the time that it was posted between December 10, 2012 and December 21, 2012. Subsequently, the beneficiary received a performance based raise and the employer listed the higher wage on the PERM application at the time of filing in May 2013.
In its Request for Reconsideration to the CO, the employer made 2 arguments: (1) The salary discrepancy between the NOF and the PERM application was harmless error because the beneficiary’s actual salary at the time of recruitment was $206,000, and (2) listing the beneficiary’s higher salary on the PERM application was proper because the PERM form does not provide a place for post-recruitment increase in salary. The employer noted that the PERM form left them with few options: freezing the pay raise until the application was filed, stopping all work on the recruitment and starting over, or listing the beneficiary’s prior salary on the form (which of course would be inaccurate information provided to the DOL).
Nevertheless, the CO upheld the denial and stated that if the employer wanted to increase the offered wage for the position, it could have just posted a new NOF with the higher wage before submitting the PERM application. On Appeal, BALCA upheld the denial and reiterated the importance of the NOF by stating that it is not a mere technicality and failure to comply with the requirements of the NOF cannot be lightly dismissed.
There was definitely enough time to re-post the NOF with the higher wage as the CO mentioned, especially considering that the company informed the beneficiary that the pay raise would occur on January 1, 2013 and the PERM application wasn’t filed until May.
There are so many issues that can arise during the PERM process. That’s why it’s very important to consult with a qualified immigration attorney before starting this process.
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