PERM Denied - Employee wage higher than wage on notice of filing

Hello,

My perm was rejected on 5/30/19 after being in audit for 4 months (priority date - 10/11/18). The reason stated was “denied because the wage listed on the Notice of Filing (internal posting) is lower than the wage offered to the foreign worker on the ETA9089”.

Has anybody been denied because of this reason? It did not make sense to me since there are protections in place to make sure foreign worker needs to be paid at least the minimum determined wage.

Would it be a good idea to file an appeal to reconsider or file a new PERM application?

If we make a new application, is it necessary to file a prevailing wage determination also?

Was the difference between prevailing wage and your current wage quite big or just small?

I think you will need a new PWD but your attorney may know better as they have access to complete copy or PERM denial notice.

I think there should be more information mentioned in your denial notice.

Hey Anil,

Thank you for the reply. The difference was less than 10%.

We are in the process of getting the complete copy of PERM denial notice. Will update here once we get access.

Please see the full reason for denial below from DOL.

Denial Reason:

The Notice of Filing contains a wage lower than the offered wage indicated on the ETA Form 9089. The Notice of Filing lists an offered wage of $X, while Section G-1 of the ETA Form 9089 lists an offered wage of $Y. (Y was 10% greater than X)

Since, the wage listed on the Notice of Filing is lower than the wage offered to the foreign worker, this application is denied.

AUTHORITY FOR DENIAL: Pursuant to 20 CFR § 656.10(d)(4) requires the notice state the rate of pay and contain the information required for advertisements by Section 656.17(f), to include subparagraph (f)(7) which stipulates that the advertisements must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

What is your attorney’s view on this?

Will speak with attorney next week. Leaning towards filing re-filing since it looks like a mistake was made in the hiring process with the notice.

Can we apply for request to reconsider while also in the process of refiling?

You can file request to reconsider but that mostly means that there is no change in documentary evidence.

In your case, it seems like the wage level in job advertisements needs to be changed.

Yes, if we had put a salary range on the job notice, it would have been approved. But it looks we will have to go through the process of PWD, recruitment and LC filing again which will take six months and a further three months for approval.

Can we file request to reconsider and also start re-filing process at the same time?

I do not think request to reconsider will have any use keeping in mind the denial reason.