ILW.COM - the immigration portal Immigration Daily

Home Page


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

移民日报

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE



The leading
immigration law
publisher - over
50000 pages of
free information!
Copyright
© 1995-
ILW.COM,
American
Immigration LLC.

View RSS Feed

Immigration Law Blogs on ILW.COM

description

  1. PERM Successfully Filed Despite DOL's Unfriendly System. By Roger Algase

    To continue my story about trying to file my client's PERM labor certification case through the DOL's online system despite having been notified that the all-important employer's PIN number had been disabled for some inexplicable reason, I spent almost all of Christmas day redoing the online application with a different case number while, with my paralegal associate's invaluable help, for which I am extremely grateful, starting to prepare a hardcopy paper version as a backup.

    These efforts took well into the evening of Christmas day. No time for eggnog this year! Why did it take all day to redo a 12-page online application which I had already previously filled out with a different online case number, much of which only involved checking "yes/no" boxes?

    One reason is that the PERM process is notoriously unforgiving. Once the application is submitted, it is not possible to correct any mistakes or to provide any new evidence that the employer has in fact followed all of the complicated and expensive procedures for testing the US job market for the offered green card job, or that the sponsored immigrant (or "alien", as our immigration law still calls immigrants today, using the bigoted and pejorative terminology of the infamous late 19th and early 20th century exclusion laws) is qualified for the offered labor certification position. Some labor certifications have even been denied because of harmless and obvious typographical errors in the PERM application, and the usual doctrine of fundamental fairness in deciding applications before administrative agencies does not get one very far in PERM cases.

    Therefore, careful proof reading before submitting PERM applications, as well as minute, detailed consideration and re-consideration of the numerous legal technicalities that can make an ostensibly simple labor certification application into a minefield is of the essence.

    But to make a long story just a little shorter, by the evening of Christmas day, not only had we made some progress in typing the backup hard copy, but I was ready once again to input the PIN number on the last page of the online ETA 9089 PERM application form and press "submit". At least, this way, I would find out with the PIN number had been disabled just for the particular case number, as the DOL's notice mentioned in Part 2 of my story indicated might be the case, or whether the PIN number had been disabled for my entire online PERM attorney's sub- account (and even more worrisome, possibly the employer's main account too).

    Therefore, with a mixture of hope and trepidation, I inputted the PIN number and pressed the submit button once again.

    Once again, I received the same bright red ink message as the first time, which was described in one of my two December 26th posts:

    "PIN has been disabled for this case. You have exceeded Your PIN input attempts. Contact DOL to reinstate your PIN"

    Well, at least this time I was psychologically prepared, and my little all-day experiment to see if the PIN disabling was only case number specific or if it extended to my entire attorney PERM sub-account (or horribile dictu, to the employer's entire main PERM filing account), had produced an answer - though not the one I was hoping for!

    Shortly afterward on that same evening, I received an email from my client, the head of the employer company. Considerately, he had also spent some time that same evening setting up a new PERM sub-account for me, so that I could try to see if the same employer PIN number would work from another attorney sub-account.

    Looking forward to that additional test of the DOL's system, which would mean spending at least part of the next day redoing the entire PERM application again with a new case number (the third one), I mentally made the wish "Merry Christmas to all, and to all a good night", and went to sleep.

    I woke up early the next morning to see that Santa had apparently arrived, in the form of a somewhat cryptic 7:00 am email from the DOL help desk in Atlanta (where the PERM applications are processed). repeating all my login information for my attorney sub-account, including the same employer's PIN.

    At first, I was not sure that this was the answer to my frantic Christmas eve emails that I was hoping for, since it did not say anything about actually reinstating the disabled PIN, but then I thought that, in its wisdom, the DOL probably does not send emails for no purpose at all, so possibly this might mean that the PIN had in fact been reinstated. Eagerly, but still with some trepidation, I went to the same sub-account I had been using, pulled up the ETA 9089 PERM form on my screen (which, fortunately the DOL's system automatically saves - let us give praise where praise is due), and I inputted the PIN number once again and pressed "submit".

    This time, it went through! It worked! The case was successfully submitted! The best Christmas present I have ever had, and who cares if it was a day late? It was still in time to meet the filing deadline.

    Yes, Atlanta, there is a Santa Claus. This concludes my PERM online filing Christmas story. A happy holiday season and a Happy New Year to all.

    But before I leave this topic completely, I will also make a few comments about the connection between the PERM online filing process and another well-known holiday, the Jewish Passover, in my next post.
    ____________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

    His practice is mainly focused on H-1B and O-1 professional and skilled worker visas, J-1 trainee visas, and green cards through labor certification (PERM), as well as extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases.

    Roger has helped immigrants from many parts of the world overcome the obstacles of our complex immigration system and achieve their goals of being able to live and work in America. His email contact address is algaselex@gmail.com






    Updated 12-28-2014 at 03:10 PM by ImmigrationLawBlogs

  2. DOL's Attorney-Unfriendly PERM Labor Cert. Filing System, Pt. 2. By Roger Algase

    The following post includes revisions made as of 8:42 pm on December 27.

    Part 1 of this three-part PERM Labor Certification Christmas story took us to my actual attempt to file an urgent ETA 9089 application through the PERM online system on Christmas eve. As I mentioned, everything that evening looked good to go.

    My client's employer PERM account was up and running - user name and password in place and operative - check.

    My attorney's sub-account with its own user name and password was also in place and operative - check. More than that, I had already filled in the 12 pages of the online form, dealing, in my best professional judgment, with every possible legal land mine and booby-trap normal to these cases involved, and I had finally come to the glorious moment where all I had to do was click the "submit" button, and the ETA-9089 would finally be filed, as had been done without incident or difficulty in my other PERM cases.

    Then according to the usual scenario, the employer could look forward to an email from the DOL asking if the company really knew that I had in fact gone ahead and filed the case (as it had retained and instructed me to do), and if I had done so with its permission. Talk about government agency-attorney trust and the employer's Sixth Amendment right to counsel - concepts that the DOL did not seem to have been very interested in when it set up the PERM system.

    The only thing remaining that I needed to take care of was the little final detail of inputting the employer's DOL assigned PIN number at the end of the electronic ETA 9089 form before pressing "submit". There was nothing wrong with doing that - not only did I know the employer's PIN number, but the DOL itself had sent it to me - in its email notifying me that my attorney sub-account had been set up. It was not in any way unauthorized or secret information.

    So I inputted the magic PIN number and pressed "submit". Immediately, instead of receiving confirmation that the application had been successfully submitted, my computer screen showed the following message in red ink:

    "PIN has been disabled for this case. You have exceeded Your PIN input attempts. Contact DOL to reinstate your PIN."

    What kind of Christmas present was that? Why was the PIN disabled? Who had disabled it? What did the message mean about exceeding my input attempts? This was the first time I had tried to input the PIN, so far as I was aware.

    Whom was I supposed to contact in the DOL, and, most important of all, how long would it take to get an answer? The 180-day PERM filing deadline after the beginning of recruitment was imminent, and the DOL foreign labor certification office is known for answering or returning phone calls about as often as Santa has been observed taking selfies while sliding down chimneys.

    Also, as indicated in the above notice, was the PIN disabled only for that case? If I tried a new case from the same attorney sub- account, would the PIN work for that case?

    Or suppose the employer were to set up a second attorney sub-account for me, assuming this was possible. Would I be able to prepare the same case all over again and file it from the new sub-account, even though the PIN was number was the employer's PIN number for its main account, and therefore would be the same even for a new attorney sub-account?

    Lots of interesting questions for Santa to deal with this Christmas, with the filing deadline ticking away faster than even the swiftest reindeer would be likely to arrive at the scene.

    The following morning, I began Christmas day by getting ready to prepare an entirely new ETA 9089 form, from the beginning to end, with a different case number, to see if the PIN had in fact been disabled only for the particular case that I had tried to submit the night before. I also (with the help of my paralegal associate, who was kind enough to postpone her own holiday plans) began to prepare a hardcopy paper version of the same form. This was as a backup in case the PIN issue could not be resolved before the filing deadline.

    Beginning Christmas eve and continuing on Christmas day, I had also been sending off anguished emails to the DOL help desk asking for reinstatement of the PIN. In addition, I also combed through the previously mentioned 50 page DOL PERM online user system guide to see if I could find out anything about why an employer PIN number could be disabled or what was required in order to reinstate it and how long that would take.

    But I could not find a word about disabling or restoring employer online PERM filing account PIN numbers. All that the user guide said was that the PIN numbers were extremely important security tools and that if any employer suspected that its PIN was being misused, it should report this at once.

    I began to suspect that somehow, while I was preparing and correcting the original ETA 9089 online form, I had inadvertently run afoul of the DOL's online PERM PIN number police.

    To be continued.
    ____________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

    His practice is focused on H-1B and O-1 professional and skilled worker visas, J-1 trainee visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases.

    Roger has helped immigrants from many parts of the world overcome the obstacles of our complex immigration system and achieve their goals of being able to live and work in America. His email contact address is algaselex@gmail.com

    Updated 12-28-2014 at 12:28 PM by ImmigrationLawBlogs

  3. DOL's Attorney-Unfriendly PERM Labor Cert. Filing System, Pt. 1. By Roger Algase


    The following post has been revised as of 8:16 pm on December 27.

    Christmas has always been a festive holiday for me, as it has been for many other good Jewish boys growing up in New York. When I was young, not only did my family have a Christmas tree, with lots of presents, but I believed in Santa myself until one year when I was about 12 or 13 and he failed to solve a chess problem that I had left under the tree for him.

    (Notwithstanding, my belief in Santa was refreshed only a couple of weekends ago when my wife and I were walking around in midtown Manhattan and ran into what must have been hundreds of young people dressed up in full Santa regalia heading to or from various neighborhood bars and looking festive indeed! Some of the young women were even wearing reindeer hats. Surely, one of those young people must have been the real Santa Claus. I cannot believe that they were all impostors.)

    My own Christmas this year, however, was decidedly less festive - the least festive, in fact, that I can ever recall, despite having a rather generous number of Christmas days under my belt. This is because virtually the entire day, from early morning until late at night was spent trying to deal with a US Department of Labor (DOL) online Labor Certification filing system, known as PERM, which was set up to be less than friendly to attorneys trying to file applications on behalf of their employer clients.

    In fact it might not be a gross exaggeration to suggest that if SONY Corporation wants to protect itself more effectively against alleged hacking by North Korea, the company could do worse that to retain the DOL as a consultant to install some the security features that the agency uses to protect itself against immigration attorneys who are merely trying to carry out their responsibilities according to law.

    As every PERM labor certification lawyer knows, the DOL has a number of security features in place to make sure that attorneys do not file Labor Certification (PERM) cases online without the express permission and authorization of the employer.

    Going around these security features by filing hard-copy paper applications through mail or courier is permitted, but not encouraged, and the DOL warns that a number of things can go wrong in that event - indeed that the DOL itself is likely to make sure that something will go wrong. Listing these hazards is beyond the scope of this comment, but I have yet to hear of anyone who has actually filed a hard-copy paper PERM application in the almost one decade since the PERM on-line system was put in place. Verbum sat sapientis. ("A word to the wise is sufficient.")

    In order to use the on-line system, first, the employer must set up a PERM account with the DOL. This involves some back and forth procedures detailed in the DOL's 50 page online user's guide, and can be subject to delays while the DOL investigates whether the business exists, is at the stated address, etc. Naturally, the employer's account must have its unique user name, password and PIN number.

    After the employer's own online PERM account has been set up. the employer must then set up an online attorney's sub-account complete with the attorney's own password and user name, together with the same employer PIN number.

    The attorney then receives an email from the DOL confirming that the above sub-account has been set up (with a warning that the DOL assigned password for the account must immediately be changed and the email deleted - is this to guard against the possibility that the attorney might actually be able to find his or her user name when it is needed)?

    The attorney might also have access to the employer's main account - especially as most employers have better things to do than spending time on PERM filing mechanics themselves - but woe betide any employer who allows the attorney to file a PERM application from the employer's main online account, rather than the attorney's sub-account. This is definitely a no-no and can result in denial of the PERM application if the DOL traces the filing or any other activity on the employer's main account to the attorney's computer, rather than the employer's.

    To return to my own personal Christmas day story, in the days leading up to the holiday, I had been guiding my client through the steps of reinstating its long-unused PERM account (since it is a small company which has not sponsored many PERM cases in the past) and then advising it about setting up my attorney's PERM sub-account. Reinstating the employer's dormant account took a day or two to hear back from the DOL but setting up the attorney's sub-account is relatively simple and only takes a few minutes. It is one of the few features of the system that works relatively quickly. Of course, it can only be done by the employer, not the attorney.

    By the day before Christmas, we were ready to go, (or to rock and roll, as the ancient expression used to say). I spent a lively Christmas eve filling out the ETA 9089 PERM application, with all of its "Kellog" language and other legal as opposed to technical minefields, and finally I reached the last page, which had instructions to input the employer's PIN number before hitting the "submit" button.

    At that point, to use a non-Yuletide expression, everything started to hit the fan.

    To be continued.
    ___________________________
    Roger Algase is a New York lawyer and a graduate of Harvard College and Harvard Law School. He has been practicing business, employment and family-based immigration law for more than 30 years.

    His practice is primarily focused on H-1B and O-1 professional and skilled worker visas, J-1 trainee visas, and green cards through labor certification, extraordinary ability and opposite or same sex marriage, among other immigration and citizenship cases.

    Roger has helped immigrants from many parts of the world overcome the obstacles of our complex immigration system and achieve their goals of being able to live and work in America. His email contact address is algaselex@gmail.com


    Updated 12-28-2014 at 12:25 PM by ImmigrationLawBlogs

  4. USCIS Claims it Does Not Rely Exclusively on EDGE Database for Educational Opinions;

    In a March 13, 2014 letter to Joseph Crowley, Member, US House of Representatives, recently obtained by the American Immigration Lawyers Association, USCIS Chief James W. McCament claims that, “USCIS does not endorse or encourage the use of EDGE over other types of credible resource material regarding the equivalency of the educational credentials to college degrees obtained in the United States.”


    We respectfully beg to disagree. In fact, we would suggest that nothing could be further from the truth.


    This response is of particular interest to Philippine educations physical therapists who have five-year “bachelor” degrees in physical therapy that many, including FCCPT, believe are equivalent to US master’s degrees in physical therapy, thus making them eligible for classification in the EB-2 immigrant petition preference category.
    While I understand that from the perspective of making a public statement about a USCIS policy, Mr. McCament probably felt the need to make a bland “we look at everything” kind of claim, the simple truth of the matter, his statement is nothing short of a blatant misrepresentation of current USCIS practice.


    I have read far, far too many denials of EB-2 petitions for Philippine educated physical therapists which claim the denial was made based solely on the fact that EDGE does not recognize the Philippines degree as being the equivalent of a US master’s degree, to believe that USCIS does not endorse or encourage the use of EDGE.


    Not only does USCIS endorse and encourage the use of EDGE, it practically requires slavish adherence to EDGE. We have submitted numerous petitions with which we have provided multiple credible educational evaluations which indicate the Philippines degree is equal to a US master’s degree, as well as letters from state licensing boards (the very people responsible for making the ultimate determination as to whether a foreign educated physical therapist may touch patients in the US), that indicate the Philippines degree is equal to a US master’s degree, and still we receive denials that simply state, “EDGE says it isn’t”. End of decision.


    The fact that so many petitions have been denied in this manner makes it clear this is not the work of some rogue USCIS officer; rather, it is part of a well orchestrated plan (and policy) to deny these petitions using the EDGE database as the reason. As the only reason. To suggest otherwise and claim all credible resources are considered is completely ludicrous.


    Rather than dance around the question by denying USCIS does what we all know it does, Mr. McCarment simply should have said, “EDGE is our ultimate resource. What are you going to do about it?”


    I much prefer being clubbed over the head to being lied to. At least that way, you really know what you’re dealing with.

    This post originally appeared on HLG's Healthcare blog by Dwight Myfelt. http://hammondlawgroup.com/healthcareblog/
  5. District Court Determines that Technology Union has Standing to Sue

    The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/
Put Free Immigration Law Headlines On Your Website

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers Enter your email address here: