One of my favorite things about my job as an immigration attorney is there’s ALWAYS a new issue to be addressed. Recently, a company came to us for a consultation on an I-140 Request for Evidence (“RFE”). At first glance, the client thought this was an Ability to Pay issue under 8 CFR 204.5 and sought our input to address the RFE.

Upon review of the RFE, our team saw an issue that we haven’t had the opportunity to address— an approved Labor Certification that ran afoul of state minimum wage requirements.

Here are the facts: In 2022, a company headquartered in New Jersey sought to hire individuals for employment in their warehouse, also headquartered in New Jersey. The ideal candidate for this postion was an individual with less than two-years of qualifying experience, typically known as an “unskilled worker” in regulatory parlance. This company properly conducted a survey of the labor market in the area of intended employment, offering a wage of $13.05 per hour.  At that time, this wage met or exceeded the New Jersey state minimum wage requirement.

This company did everything proper in their recruitment and were able to demonstrate to the US Department of Labor there were no available or qualified US workers in the area of intended employment  and therefore no US workers would be negatively impacted by offering this job opportunity to a non-citizen. As such, the Department of Labor provided the company an approved Labor Certification (ETA 9089) upon a demonstration that there were no available or qualified US workers in the area of intended employment.

For reasons not attributable to the company and solely attributable to the Department of Labor’s ridiculous Labor Certification processing times, it took nearly two years for that Labor Certification approval to arrive. Therefore, the company was ready to file its Form I-140, Immigrant Petition for Alien Worker.

However, by this time in 2024, the minimum wage in New Jersey rose from $13.05 (the wage certified by the Department of Labor at the time of filing in 2022) to $14.13. Upon filing the I-140, the company stated they were continuing to offer the wage certified in 2022.

After filing, the company received a Notice of Intent to Deny (“NOID”) stating that USCIS cannot approve a petition that is based on an illegal or otherwise invalid employment agreement. While USCIS recognized the wage on the Labor Certification was proper in 2022, the wage offered based on that certification would be unlawful under New Jersey state law. The company cannot meet federal requirements while at the same time running afoul of state-level requirements.

This case teaches us two important lessons. One, every single I-140 petitioning company must demonstrate an ability to pay the wage identified on the Form I-140 and this offered wage must meet or exceed the wage mandated in the Labor Certification. Two, simply meeting that ability to pay calculation cannot guarantee an approval. Therefore, every single I-140 petitioning company must demonstrate an ability to pay the wage the wage identified on the Form I-140 AND that wage must meet or exceed the minimum wage requirements of the location of intended employment

Generally, this issue will be exceedingly rare on an EB-2 (Alien possessing an Advanced Degree or an Alien with Exceptional Ability) or EB-3 (Professional or Skilled Worker) Form I-140, Immigrant Petition for Alien Worker. Typically, these employment-based immigration preference categories require a Master’s Degree or a Bachelor’s degree plus 5 years of experience (EB-2 Advanced Degree), a Bachelor’s degree (EB-3 Professional), or at least two years of study or training (EB-2 Skilled Worker). 

Because each of these categories require a  showing of education and/or experience, these categories will almost always have wages far, far in excess of any federal or state minimum wage requirements.

However, for EB-2 Unskilled Workers (i.e. for positions requiring less than two years of study or training), it is common for these positions to offer only the minimum wage. Therefore, when filing these petitions, it is important to recognize two areas of best practice. One, when filing the Labor Certification, the offered wage on that Labor Certification must meet or exceed the federal and state minimum wage requirements for the location of intended employment. Two, when filing the Form I-140 subsequent to the approval of the aforementioned Labor Certification, the offered wage on that Form I-140 must meet or exceed the 1) the offered wage inherent in the Labor Certification and 2) must meet or exceed federal and state minimum wage requirements for the location of intended employment in the year the I-140 is being filed, not based on the year the Labor Certification was filed and/or approved.

By:Ryan A. Wilck, Partner and Attorney at Law

Ryan Wilck is a Managing Partner and attorney at Reddy & Neumann, P.C. with over a decade of US immigration law experience, enthusiastic and proactive in his approach assisting clients and their employees through the various phases of the permanent residency a/k/a Green Card process. “Concilio et labore” is not only the motto of Ryan’s favorite sports club but is also his life’s motto; all things come through wisdom and effort. Ryan is passionate about gaining the trust of his clients by utilizing a relentless and detail-oriented approach to understand their specific goals and concerns, hoping to instill a sense of confidence and stability. Whatever your immigration problem or interest, he and his team will find a solution, through wisdom and effort. Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on employment-based business immigration. We work with employers and their employees, helping navigate the complex immigration process efficiently and cost-effective.

 We are committed to assisting our clients with navigating the complex PERM Labor Certification (ETA 9089 and other challenging immigration matters as an accomplished immigration law firm in Houston, Texas. Our team is here to offer the direction and support you require, whether you’re a company trying to hire top talent or a foreign worker seeking to develop a career in the United States. To find out more about how we can help you with your immigration issues, get in touch with us right away.