Matter of Baily Int’l – Denial upheld for offering 99.51% of the prevailing wage

BALCA refused to apply Superior Landscape to round up the wage on the NOF that was 99.51% of the prevailing wage. Stated that the CO has the discretion to take a reasonable approach in cases like this.

Issue Date: 19 April 2011
BALCA No.: 2010-PER-00468
ETA No.: A-07288-85580

In the Matter of:
Employer, on behalf of LEE LOKE LEE, Alien.

Certifying Officer: William Carlson
Atlanta National Processing Center

Appearances: Pei-Yao Chiu, Esquire
Monty Chiu & Associates, P.C.
Norcross, Georgia
For the Employer

Gary M. Buff, Associate Solicitor
Stephen R. Jones, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Colwell, Johnson and Vittone
Administrative Law Judges


PER CURIAM. This matter arises under Section 212(a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations governing permanent alien labor certification found at Title 20, Part 656 of the Code of Federal

Regulations (“C.F.R.”).


On October 17, 2007, the CO accepted for processing the Employer’s Application for Permanent Employment Certification, ETA Form 9089, on behalf of the Alien for the position of Purchasing Manager. (AF 103, 107-118).1 The Employer listed both the offered wage and the prevailing wage as $67,787 per year. (AF 108). On October 30, 2007, the CO issued an Audit Notification. (AF 103-106). Among other documentation, the CO directed the Employer to submit a copy of its Notice of Filing (“NOF”). The Employer submitted its audit response under cover letter dated November 8, 2007. (AF 24-102).

The one-page copy of the NOF provided in the Employer’s response to the audit notification states the rate of pay as “$67,454.00/year.” (AF 47).

The CO denied the application on October 5, 2009 on the grounds that the NOF contained a rate of wage less than the prevailing wage and less than the offered wage, in violation of 20 C.F.R. §§ 656.10(d)(4), 656.17(f)(5) and (7). (AF 22-23). The Employer requested reconsideration on November 2, 2009, arguing that it would be “unethical and inhumane to deny a Labor Certification Application based solely on the deficiency less than .50% of the prevailing wage . . . .” (AF 3-21).

The CO denied reconsideration and forwarded the case to BALCA, and BALCA issued a Notice of Docketing on April 22, 2010. The Employer filed an appellate brief on May 24, 2010, citing Superior Landscape, Inc., 2009-PER-83 (Aug. 28, 2009), to argue that the Board should forgive the $333 difference between the prevailing wage and the wage listed on the NOF, since it equals 99.51% of the prevailing wage. The CO filed a Statement of Position on June 2, 2010, arguing that this is not a situation where “rounding” is appropriate, and asked the Board to affirm the denial.


The PERM regulations require that an employer filing an application for permanent labor certification under the basic process must provide notice to the employer’s employees at the facility or location of employment. 20 C.F.R. § 656.10(d)(ii). Additionally, the regulations provide that require that the Notice of Filing must contain the information required for advertisements by § 656.17(f) and must state the rate of pay, which must equal or exceed the prevailing wage entered by the State Workforce Agency (“SWA”) on the prevailing wage request form. 20 C.F.R. § 656.10(d)(4).

The Immigration and Nationality Act requires the Secretary to Labor to determine and certify, among other matters, that the employment of the sponsored alien “will not adversely affect the wages and working conditions of workers in the United States similarly employed.” 8 U.S.C. § 1182(a)(5)(A)(i)(II). The Act also provides that the prevailing wage required to be paid pursuant by an employer sponsoring an alien for permanent labor certification shall be 100 percent of the prevailing wage determination. 8 U.S.C. § 1182(p)(3). Consistent with this statutory requirement, the regulations provide that the wage in advertisements and the NOF may not contain a wage rate lower than the prevailing wage rate. 20 C.F.R. § 656.17(f)(5). Additionally, an employer may not include a wage in its NOF that is less than the wage offered to the foreign worker. 20

C.F.R. § 656.17(f)(7); IAC Search & Media, Inc., 2010-PER-55 (Dec. 28, 2010); RFL Electronics Inc., 2009-PER-285 (Apr. 7, 2010); Thomas L. Brown Associates, P.C., 2009-PER-347 (Sept. 1, 2009).

In Superior Landscape, the employer’s statement of its wage offer was deficient by 40 cents per week ($19.70 per hour instead of $19.71 per hour, i.e. 99.95% of the prevailing wage). Slip op. at 3. Under the precise circumstances of that case, the Board was willing to round up to 100%. Id.

In the instant case, the Employer’s NOF is deficient by $333 ($67,454 per year instead of $67,787 per year). Thus, the stated wage offer equals 99.51% of the prevailing wage and is less than the wage offered to the foreign worker. We decline to round up in this case, because the deficiency of $333 clearly violates the statutory requirement and the regulations at Section 656.17(f)(5) and (7). One hundred percent can only mean 100 percent, and we find that any mathematical manipulation is not supported by the statutory and regulatory requirements.

Accordingly, we affirm the CO’s denial of labor certification in this matter.


IT IS ORDERED that the denial of labor certification in this matter is hereby AFFIRMED.

Entered at the direction of the panel by:

Todd R. Smyth
Secretary to the Board of
Alien Labor Certification Appeals

Administrative Law Judge John M. Vittone, concurring.

The panel’s holding in the context of the facts of this case probably will be viewed as absurd by some persons, especially the employer. However, as an appellate body, BALCA has limited discretion to waive the clearly stated requirements of the regulation. In these kinds of situations, it is the Certifying Officer who has the discretion to take a more reasonable approach in such close calls. If he had done so, the parties would not have had to expend additional time and resources, and the purpose and goal of the PERM process would not been harmed.

1 “AF” is an abbreviation for Appeal File.

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17
Used the services of this office for Green Card through AOS and was mainly in contact with John Dorer. I was unsure about their services at first, considering the unusually affordable cost but was pleasantly surprised by their prompt responses to all our questions and their timely preparing and handling of our documents! Will be using their services again when filing for removal of condition! Definitely recommended!
Lisa Lorentzon
Lisa Lorentzon
22:56 10 Dec 17
my wife and i worked with John Dorer from Marc Taylors Associates. He's services were awesome and amazing. i would recommend him to anybody applying for their permanent resident to work with them.
Seun Olanrewaju
Seun Olanrewaju
15:33 22 Dec 17
I was very pleased with their professional service from the beginning to the end for my citizenship application. I am a professional working in the higher education and somewhat familiar with the immigration process. For that reason, I was thinking of applying it by myself but I found Taylor and Associates whose service fee is very affordable and worth of my time. Indeed, they found some of minor mistakes in my application, which could have delayed much longer for my application process. Luckily, they caught and fixed them immediately. Their communication was excellent. In fact, everything was very smooth. Even after I had the approval notice, they followed up with valuable advices. I strongly recommend their service if you need immigration services. Thank you Marc and John for your excellent services.
Dominic Choo
Dominic Choo
17:12 23 Dec 17
Absolute top notch firm for any and all immigration assistance. They assisted me in obtaining my permanent residency and through it all were right there to assist with trouble shooting and complications. Any and all questions were always answered within hours and you’re never left to feel anything less than a top priority as a client. The friendliness and professionalism with which they operate is A1 and I wouldn’t have been able to navigate the complications of USCIS without Marc and John. Highly recommend anyone seeking assistance to contact them!
Vanessa Nolan
Vanessa Nolan
21:05 21 Mar 18

Read More Client Reviews