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Marcel Cleaners, Inc. Case number 2009-PER-00395

  • Certification Denied Where Wage on Job Order was Less than Prevailing Wage.

I. Issue & Summary of Decision:

The Board of Labor Certification Appeals (BALCA) on February 16, 2010 issued a decision inMarcel Cleaners, Inc. Case number 2009-PER-00395 affirming the certifying officer’s denial of a PERM application where the employer failed to include on the Job Order a wage at least equal to the prevailing wage for the particular position.

  1. Whether the” Job Order” recruitment method requires the listing of the wage on the posting with the local State Workforce Agency.

The Job Order is a mandatory recruitment step specifically listed in the regulations. There is no requirement that the employer must include the wage offered or the prevailing wage on the Job Order under 20 CFR 656.17 (e)(1)(i). Notwithstanding, BALCA ruled that a wage must be included in the Job Order posting in a manner consistent with the internal Notice of Filing (NOF) criteria provided in the PERM application process. The NOF requires the posting of the higher of wages offered or a range wherein the bottom of the end of the range equals or exceeds the prevailing wage, and the upper end of the range would include the offered wage.

II. Facts:

In the case, the employer posted a wage range on the pre-filing recruitment stage known as the “Job Order.” Employers are allowed to enter a range on both the Job Order and the internal notice but the lower end of the range must at least equal to the prevailing wage and the higher end of the wage must include the wage itself. After filing, the USDOL issued a PERM audit letter which revealed this error.

III. The Decision:

BALCA stated even though the USDOL regulations do not specifically require such range to be included in the Job Order, the immigration laws require an employer to at least pay the prevailing wage. In addition, the legislative history allows a range to be included so long as the lower end of such range at least equals the prevailing wage amount. BALCA concluded that the error of the employer was sufficiently serious to warrant the denial of the PERM application.

IV. Conclusion:

All recruitment activities must be conducted in a manner to test the market in good faith. The recruitment activities which precede the filing of a PERM application must provide the intending US candidate a clear notice and vision of the position and the potential wage that may be paid. Failure to clearly show the prevailing wage or an acceptable range thereof on the job order will lead to denial of the PERM application.

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