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Difference in PERM and H1-B Prevailing Wages

Discussion in 'I-140 petitions' started by jetski76, Dec 31, 2010.

  1. jetski76

    jetski76 Member

    Hello Ron,

    In your most recent Newsletter, you write:

    "Other offices have reported that they have received RFEs questioning why there are differences in the material terms of H1B petitions, verses those set forth in PERM applications. For example, both have the same job title and job description, but the prevailing wage amounts are vastly different. Also, the H1B might show the employee working in an entry level job (with a correspondingly lower prevailing wage), while PERM shows a more complex job and higher salary. The dates suggest that both jobs cover the same period in time."

    My case:
    a) The job title, SOC job code, job description for my PERM and H1-B are identical. I have been with my employer on H1-B for more than seven years.
    b) My PERM was filed in Sept 2009 with a Level II prevailing wage. At that time, my wage was higher than Level II.
    c) Due to pay freezes, my salary has not increased after that.
    d)My current H1-B (valid from Sept 2010 - Sept 2011) has a Level I prevailing wage. My current wage is $4000 less than the Level II prevailing wage for 2010-2011 and more than $4000 of the Level I prevailing wage of 2010-2011.

    My PERM was approved without any audits and my I-140 was filed in Oct 2010 and is currently pending.

    My questions:

    a) When processing my I-140, if CIS sees this discrepancy of $4000 between the prevailing wages of PERM and H1-B and the difference in wage levels (I vs II),will they issue a NOID or a straight denial?

    b) When I put this question to my employer, the answer was that PERM is for a future position and my current wage is identical to my
    US Citizen colleagues at my level in our company. In the event of a NOID/RFE or an onsite visit, my employer told me that they would emphasize these two points with documentation. Is this convincing enough as a response to a NOID/RFE/Onsite Visit? If no, what additional documentation would be needed?

    c) Also, when I asked why did they choose Level I prevailing wage for H1-B, they told me that as long as I was paid the actual wage (same as my US citizen colleagues), it did not matter if they chose Level I or Level II. Is this true? If not, would you recommend filing an amended petition with a new LCA where the wage level is as per DOL's prevailing wage determination (ETA 9141) ?

    As you can tell, I am worried about this matter. I would be grateful for any reply from you.

    Thank you!
    jetski76
  2. jetski76

    jetski76 Member

    Re: Difference in PERM and H1-B Prevailing Wages

    Hello Ron,

    Were my questions too specific/long? If possible, kindly let me know.

    Thank you!
  3. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Difference in PERM and H1-B Prevailing Wages

    A $4k difference in salary should not set off any alarm bells by itself. This is likely a case of the employer not obtaining a "safe harbor" prevailing wage determination for the H1B. If the two positions have been described identically, then the employer was clearly in error in classifying the H1B as a level 1 salary, since for PERM purposes, the DOL formally found it to be a level 2. Since you were paid a salary above the level 2 prevailing wage, it's only a problem in theory and I don't see any real issues stemming from it.
  4. jetski76

    jetski76 Member

    Re: Difference in PERM and H1-B Prevailing Wages

    Hello Ron,

    Thanks a lot for your reply!

    As mentioned previously, due to pay freezes, my salary from 2009 (> Level II at that time) has not changed.

    My current salary is $4000 less than the Level II for 2010-2011. During March 2011, when applying for a H1-B extension, do you recommend my employer apply for a formal prevailing wage using ETA 9141? I am asking this because I am certain the DOL will come back with Level II. We have pay freezes for next year as well and there is no way my employer will be able to increase my wage by $4000. In that case, there are no options left for H1-B extension. Am I look at a dead-end here? Can my employer ask the DOL to re-consider their wage level for my case as my actual wage is what all my US Citizien colleagues are paid as well?

    Thank you!


    Regards,
    jetski76
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

    Re: Difference in PERM and H1-B Prevailing Wages

    Whether the employer gets a formal prevailing wage finding or not, the employer is still bound by whatever the DOL determines the prevailing wage to be. If the employer obtains a formal prevailing wage determination, then that acts as a "safe harbor" for the employer and the DOL cannot come back and second guess the salary later. If the employer does not get a PWD, the DOL may come in at any point and make a formal determination. If that figure is higher than the actual wage, then the DOL will order the employer to pay the difference, plus interest.
  6. jetski76

    jetski76 Member

    Re: Difference in PERM and H1-B Prevailing Wages

    Hello Ron,

    Thank you so much for the detailed reply!!

    Regards,
    jetski76

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