USDOL accepts prevailing wage survey! Plus, parole in place update

 Ever since the USCIS became responsible for immigration in the CNMI, employers of H-1B visa-qualified employees have been frustrated-and so have we-by the absence of any local wage scales to use in processing H-1B applications. USDOL has taken zero action to determine what the local wages might be for any H-1B job. Instead, in the absence of a local prevailing wage survey, USDOL has required employers to use the wage scales already established for Guam. While that is just fine for workers who will be stationed in Guam, Guam wages have long been much higher than those in the CNMI-double or even triple. USDOL’s attitude has been, essentially, “not our department.” Well, actually it is their department, but USDOL didn’t bother to survey CNMI wages. Neither did the CNMI government, although noises were made indicating that a survey was in the works, sometime in the future.

Saipan Chamber of Commerce Prevailing Wage Survey

This summer, the Saipan Chamber of Commerce stepped up to the plate and engaged The Employers Council, a Guam non-profit with experience in wage surveys, to conduct a prevailing wage survey for the CNMI. The results came out a couple weeks ago, and we started using them in clients’ H-1B applications.

While the survey results were still pending, and even after they came out, employer after employer asked us, “What if USDOL doesn’t accept the survey? How do we know the survey will work? What will we do if they turn us down?” These are not unimportant questions because, in most cases, the employers are small businesses trying to retain critical employees at some significant cost: H-1B is the most expensive visa available, in terms of U.S. government filing fees.

Now we know, and the answer is a resounding “YES! USDOL ACCEPTS THE CHAMBER’S PREVAILING WAGE SURVEY!” This past Saturday, we received email notification from the Office of Foreign Labor Certification, which is part of USDOL’s Employment & Training Administration, that a Labor Condition Application, LCA, for an electrical engineer had been certified.

The LCA is the required first step in applying for H-1B and a number of other employment-based visas, and it is accomplished by online submission of a Form ETA 9035E, Labor Condition Application for Nonimmigrant Workers. The LCA asks certification that the job category is available for H-1B employees, and that the wage offered be given a positive prevailing wage determination. As part of the application, we submitted the Chamber’s prevailing wage survey PDF files labeled “Wage Salary Summary Report” and “Methods Procedures of the Survey,” both available at the Saipan Chamber’s website, at http://tinyurl.com/3ksrhbd. Turnaround time? We submitted on Oct. 11, got the LCA approval Oct. 15.

Today’s column is not a step-by-step guide for H-1B applications, but here are some helpful hints for the LCA-all learned the hard way, by trial and error:

Expect that the LCA will be denied the first time, and for the stupidest reasons: USDOL has not educated its reviewers or their guidelines, or checklists, or whatever references they use, that the CNMI exists out here in the western Pacific. The most common reason for rejection is that the initial reviewer fails to recognize the federal employer identification number (FEIN), and the denial email states that the LCA “contains an obvious inaccuracy.” You then need to submit proof that the FEIN is indeed valid, following which you will get an email from an “LCA Business Verification Team,” admitting that your FEIN is accepted, and allowing you to re-submit the ETA 9035E as a new application. As proof, we usually submit copies of recent 941-SS filings-federal Social Security taxes-showing the FEIN.

We have also gotten denials based on failure to recognize 96950 as a valid ZIP code. Same process-we submit copies of the appropriate USPS website page, showing CNMI ZIPs.

The ETA 9035E requires that you enter the Standard Occupational Classification, or SOC, number for the particular job and the wage rate. (You can find the SOC on the USDOL’s website, along with other prevailing wage information, through the links at http://tinyurl.com/63lwtsa.) When we entered the wage rate showing the prevailing wage survey’s lowest and wages for a particular job classification, the application was denied. So instead we entered the actual wage offered as the lowest wage, plus the highest wage shown on the survey to show the wage range, and then entered the wage offered in the space for the prevailing wage. Bingo-approved.

The ETA 9035E also requires that you identify the prevailing wage source if-as will be the case for CNMI employers-you check “other” rather than one of the standard government sources. The formal name is, “Saipan Chamber of Commerce-2011 Survey of Wages & Salaries in the CNMI.”

Of course, getting the LCA approved is just the first step. The certified ETA Form 9035E must be printed and signed before it can be used as part of the H-1B application, but it clears the way to file the Form I-129 (Petition for Nonimmigrant Worker). The LCA is also used for other nonimmigrant visa applications, and for some immigrant applications (for which the employer files Form I-140, which is a petition for an immigrant worker).

This is not just big news for CNMI employers and employees, it’s HUGE. Major kudos to the Saipan Chamber and its executive director, Richard A. Pierce, and to Andy Andrus of The Employers Council. The prevailing wage survey was done very quickly, and for a very reasonable price. Prevailing wage surveys are only considered valid for about two years. To those employers among our readers who didn’t participate: don’t miss your chance the next time around.

Update on parole in place

Parole in place appears to be a moving target. In our last column, dated Sept. 26, 2011, we indicated that parole in place was likely to be available for immediate relatives of U.S. citizens who were unable-for financial or other reasons-to file for a green card prior to Nov. 28. That now seems to be less likely. On the other hand, we were worried that nonimmigrants with pending employment-based petitions, such as H-1B, E-1, E-2, L-I and R-1, would be required to exit the CNMI if their applications were not adjudicated by the deadline. That is definitely not so, based on a USCIS Update issued Oct. 5, 2011. The new policy allows persons with pending 1-129 applications to apply for parole in place and work authorization so that they can remain and work in the Commonwealth without interruption while their petitions are adjudicated.

Because parole in place is such an uncertain process, we have decided to gather what we know-and what we don’t know-on how it seems to be applied in the table below. Remember, no matter what we say, or think, parole in place is always discretionary and is decided on a case-by-case basis. But as Bruce always says, it’s like dancing: it never hurts to ask.

The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.