Page 35 - The Indian EYE 020323

IMMIGRATION FEBRUARY 03, 2023 | The Indian Eye 35

NOW

IndiaLife TV Available

on your SmartTV with Zingo TV App

ETA 9089. See Om Shri Ganesh, LLC, actually exceeded the prevailing wage. ment and in the single wage indicated in flected in the NOF. The DOL has said
Simply go to your App Store or Play Store
2016-PER-00024 (July 28, 2016); Red However, in Marcel Cleaners, Inc., 2009- the NOF. Practitioners can take some that employers must comply with PERM
Apple Child Dev. Ctr., 2009-PER-00472 PER-00395 (BALCA February 2010), comfort in A Cut Above Ceramic Tile, rules. If employers need to comply with
(June 29, 2010); Lakeview Farms, 2011- BALCA affirmed the denial of a labor 2010-PER-00224 (Mar. 8, 2012) where local wage transparency laws it would be
PER-01679 (Sept. 4, 2014); Charles E. certification when the job order listed a BALCA held that based on the history prudent for the employer to comply with
Churchwell, 2012-PER-01662 (Mar. 2, wage range, the lower end of which was of the PERM regulations and the plain those laws too during labor certification
2016). Sensus Metering Systems and less than the prevailing wage. BALCA language of 20 C.F.R. §656.17(e)(2)(i), recruitment but DOL is not concerned
its progeny illustrate the importance of reasoned that 20 CFR § 656.17(f)(5) proof of publication of the State Work- about what employers must do under
From SmartTV Download ZingoTV App
ensuring that a consistent offered wage expressly specifies that advertisements force Agency (“SWA”) job order is not local laws. Employers need to now tread
range is listed across the NOF, advertise- placed in newspapers and professional required supporting documentation in even more carefully when they are com-
ments, and the PERM application itself. journals must not contain a wage rate the event of a DOL audit of the labor pelled to state a wage range under state
In cases where recruitment has in- lower than the prevailing wage. certification application. transparency laws taking into account
advertently included a salary range that Finally, employers must also be care- Wage ranges in labor certification all the relevant considerations regard-
fell below the prevailing wage, there have ful about State Workforce Agency job recruitment always add more complexi- ing wage ranges established under DOL
been a few decisions where BALCA has orders whose algorithms may require a ty and risk to an already hyper technical rules and BALCA decisions.
Login|Register with your eMail then
been relatively forgiving. In Re IAC different formulation of the wage. Thus, process. The DOL will likely continue (This blog is for informational purposes
Search & Media, Inc., BALCA Case a wage range of $0-$70,000 (depending to deny labor certification if there are
No.: 2011-PER-00845 (May 2, 2012), for on experience) will not be in compli- discrepancies, such as when the salary and should not be viewed as a substi-
example, involved an employer who in- ance with the regulation. This issue also range falls below the prevailing wage at tute for legal advice).
advertently listed a salary lower than the came up in Gallup McKinley County the lower end (notwithstanding some
prevailing wage in the ETA Form 9089 Public Schools, although BALCA fo- BALCA decisions going the other way) *Kaitlyn Box is a Senior Associate at
and in a website advertisement. BALCA cused its denial on the discrepancy be- or if the wage range stated in the adver-
Start Watching IndiaLife TV 24 Hours LIVE
held that employer had actually offered tween the wage range in the advertise- tisements is different from the wage re- Cyrus D. Mehta & Partners PLLC.
a salary that exceeded the prevailing _________________________________________________________________________________________________________
wage, so the typographical error was not Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of Cyrus D. Mehta &
grounds for denial of the PERM. Sim-
ilarly, in Nancy Adelman, 2011-PER- Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation Task Force; AILA’s EB-5 Com-
02464 (BALCA 2011), BALCA over- mittee; former chair of AILA’s Ethics Committee; special counsel on immigration matters to the Departmental Disciplinary
turned a denial of a PERM application Committee, Appellate Division, First Department, New York; member of the ABA Commission on Immigration; board member
on the grounds that the “prevailing wage of Volunteers for Legal Services and board member of New York Immigration Coalition. Mr. Mehta is the former chair of the
rate and validity period listed in Section Board of Trustees of the American Immigration Council and former chair of the Committee on Immigration and Nationality
You can click www.indialife.tv
F of the Employer’s ETA Form 9089 did
not match the information contained in Law of the New York City Bar Association. He is a frequent speaker and writer on various immigration-related issues, including
the PWD submitted by the [e]mployer” on ethics, and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration and
as part of an audit response. BALCA Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of immigration law
held that a labor certification cannot be and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the
denied due to a typographical error un- immigration field. He has also received two AILA Presidential Commendations in 2010 and 2016. Mr. Mehta is ranked among
on your browser and watch IndiaLife TV 24 Hours
less the result is a violation of the PERM
regulations, and no violation had oc- the most highly regarded lawyers in North America by Who’s Who Legal – Corporate Immigration Law 2019 and is also ranked
curred here since the offered wage had in Chambers USA and Chambers Global 2019 in immigration law, among other rankings.

www.TheIndianEYE.com

Also download ZingoTV

for any of your Mobile Device

or any Smart Device

Start Watching IndiaLife TV

24 Hours LIVE IndiaLife TV

The Heartbeat of

Indians in

North America

and Worldwide

Advertise with IndiaLife TV

Call: 1-917-662-1122 eMail: [email protected]