Embassy’s erroneous employment visa refusals

WHENEVER an employer sponsors (or petitions) an alien for labor certification (or PERM), the employer must agree to offer at least the “prevailing wage” for the job position, as determined by the U.S. Department of Labor (DOL), based on the job requirements and location of employment.

A prevailing wage determination from DOL is obtained by the employer before filing the PERM application, and that prevailing wage determination (or salary) is valid throughout the entire labor certification process, even if that process takes years to complete.  Simply put, the prevailing wage obtained from DOL at the outset of the case is the wage the employer must offer to and pay the sponsored alien.

The American Immigration Lawyers Association (AILA) has reported that the U.S. Embassy in Manila, Philippines has been requiring applicants to provide updated, notarized letters from their petitioning employer confirming the employer’s intent to pay the applicants at the current prevailing wage, even though the wage listed on the employer’s I-140 petition remains in effect for the life of the petition.  The employer need only agree to pay to prevailing wage listed at the time of initial filing, and it is in error to require them to now commit to pay a salary at the current wage rate. (unless it is a “minimum wage” job, in which case the current minimum wage might need to be paid vs the minimum wage at the time of filing).

The “job offer” letter from the employer need only confirmation that the terms and conditions of the employment offered in the I-140 petition are still available to the alien, including the prevailing wage provided by the DOL and approved by USCIS at the I-140 stage.  According to AILA, the Visa Office of the U.S. State Department confirmed that “consular officers [at the U.S. Embassy in Manila] should not require the employer to pay the current prevailing wage…”

Unfortunately, some consuls are requiring job offer letters from employers that state the employer will pay the current prevailing wage, and are refusing to issue visas unless that letter is submitted to the Embassy.  But this is in error.  The employer need offer only the prevailing wage initially determined by DOL at the outset of the case.

If you, or someone you know, is being processed for an employment-based visa at the U.S. Embassy in Manila, but are being refused to issue their visa based on this prevailing wage validity, you should seek the assistance of an attorney, who can help resolve the matter, which may simply be a training issue for that Post.

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Michael J. Gurfinkel has been an attorney for over 35 years and is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different and results may depend on the facts of the particular case. The information and opinions contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) are of a general nature, and are not intended to apply to any particular case, and do not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

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