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Joel Stewart on PERM Labor Certification

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  1. OFLC Stakeholder Meeting PERM, H-1B and Prevailing Wage, Washington D.C. September 12, 2017

    by , 09-13-2017 at 10:51 AM (Joel Stewart on PERM Labor Certification)
    OFLC Stakeholder Meeting PERM, H-1B and Prevailing Wage
    Washington D.C.
    September 12, 2017

    PERM

    1. During the June 2017 Stakeholders Meeting, OFLC confirmed that employers or their attorneys of record may request a duplicate PERM certification if the certification is lost in the mail. However, while some AILA members have been able to obtain a duplicate PERM certification directly from OFLC, others report being told by OFLC that they should request a duplicate PERM certification through USCIS as part of the I-140 process. These members have received the following responses from OFLC:

    Your request for a duplicate certification has been received for case A-XXXXX-XXXXX forwarded to the appropriate parties for review.

    Unfortunately, we cannot provide you with an anticipated processing time for completion. You will receive a Request for Evidence (RFE) directly from USCIS. After receipt of the Request for Evidence, any further communication while this case is pending should be directed to USCIS.

    PLEASE NOTE: DOL WILL NOT SEND THE DUPLICATE CERTIFICATE TO YOU; IT WILL BE SENT DIRECTLY TO USCIS.

    Please clarify under what circumstances OFLC will issue the duplicate certification directly to the employer (or its attorney of record) and what information the employer or attorney of record must provide to OLFC so that the duplicate certification is issued directly to the employer or its attorney of record, rather than to USCIS?

    2. Since the June 2017 Stakeholder Meeting, OFLC has changed the Sponsorship Questionnaire. The new Sponsorship Questionnaire states that the PERM application will be denied (without appeal rights, etc.) if the employer does not respond to the questionnaire within 30 days. Other than the extension of time to 30 days, has OFLC made any other substantive changes to the Sponsorship Questionnaire process, including the right to seek reconsideration or review of an application denied based upon non-confirmation of sponsorship?

    Does OFLC send a follow-up e-mail if the employer does not respond within 7 days?

    If so, does OFLC attempt any other contact within the remaining 23 days?

    For example, as in the past, does OFLC still attempt to contact an employer by telephone prior to denying an application for lack of sponsorship verification?

    3. During the August 16, 2017 OFLC webinar, the Atlanta Processing Center stated that employers and attorneys of record could use box H.14 on the ETA Form 9089 to further explain requirements that are potential audit triggers, such as foreign language requirements. Can OFLC further elaborate as to what type of explanation employers should provide to fully explain why such requirements are necessary?

    4. What percentage of audit responses are currently being filed by uploading the documents into the CMS, by emailing the documents, and by mailing in the documents?

    5. During the August 16, 2017 OFLC webinar, the Atlanta Processing Center stated that employers and attorneys of record could request extensions on the 15 day RFI timeframe under certain circumstances. What are the factors that OFLC considers before granting an extension?

    At the December 2016 Stakeholder meeting, OFLC confirmed that a response to an RFI extension request is normally provided within one week – is this still the case?

    Does OFLC keep metrics on how many RFI extension requests it receives, and how many requests are granted?

    If so, could OFLC share these metrics?

    6. Members have been reporting an issue, seemingly isolated to April 2017, where attorneys submitted, via email, responses to audit requests but nevertheless received a denial based on failure to respond to the audit. Attorneys who have received these denials have filed Requests for Reconsideration (RFRs) with evidence of their timely filed responses. Please provide information on the system issue that caused these denials and provide an update on the status of these RFRs. Will these RFRs be reviewed in the “government error” queue rather than the regular processing queue?

    7. The regulations require the employer to maintain a PERM audit file for five years after approval of the PERM application. After a PERM application is filed but before it is approved, it is not uncommon for an employer to have a staffing change such that the PERM signatory for the company is no longer employed when the application is approved. USCIS accepts the original PERM for I-140 purposes if the new signatory crosses out the name of the prior signatory on the original PERM approval, prints his/her name, and then signs the application. For purposes of compliance with the five year retention requirement, please confirm that this practice is acceptable to OFLC as well.

    8. At the December 2016 Stakeholder Meeting, AILA inquired as to whether OFLC collects or monitors metrics regarding Help Desk customer satisfaction. We understand that OFLC would like employers and other system users to utilize the Help Desk as the mechanism to resolve system and case-specific problems, and we have encouraged our members to actively report issues to the appropriate Help Desk. However, we continue to hear dissatisfaction from members about the nature of the responses received, particularly when complex issues are involved. In certain instances, OFLC has instructed stakeholders to submit inquiries in need of further resolution with the email subject line “Attention Supervisor.” Has OFLC collected any metrics regarding the effectiveness of this process in resolving complex Help Desk issues, and does OFLC plan to further refine this escalation procedure? What does OFLC consider an appropriate timeframe for resolution of a substantive Help Desk issue?

    9. Employers continue to report that Business Existence (BE) verifications are taking significantly longer than 30 days to complete after responding to an RFI. On average, how long does OFLC take to process a BE verification after the RFI response?

    At what point should an employer follow-up with OFLC if it does not receive a response after responding to a BE RFI?

    Other than sending inquiries to the Help Desk, are there any other steps that an employer can take to expedite a delayed BE verification?

    10. If an employer files a PERM application through the mail, and OFLC is unable to verify the existence of the business, will OFLC send an audit notification to obtain documentation of business existence, or will OFLC deny the application without audit?

    11. During the August 16, 2017 OFLC webinar, the Atlanta Processing Center stated that employers and attorneys of record could use the upload feature in the CMS to notify OFLC of changes in attorney representation or address. Could OFLC clarify which drop-down menu employers and attorneys of record should use for this purpose?

    Additionally, what information must employers and attorneys provide in order to ensure OFLC can make the necessary change on the Form ETA 9089? Finally, please confirm that this functionality is available at any time after submitting the ETA Form 9089 and does not require issuance of an audit.

    12. We thank OFLC for notifying stakeholders on its website when the iCERT and/or PERM systems will be taken offline. However, members have noted that not all off-line periods are indicated on the website. Is it possible for OFLC to notify stakeholders at least a few days prior to taking the systems down for maintenance? If the systems have to be taken down on an emergent basis, can OFLC still inform stakeholders on its website, including when it anticipates that the sites will become available again?

    13. A number of members have reported that the PERM system is incorrectly "timing out" when they are attempting to enter data in Section K. The system states that it has been idle for more than 45 minutes and closes the form, causing data to be lost. This appears to happen regardless of the browser being used. Members report that they have raised this with the Help Desk. Is OFLC aware of this issue, and can it provide any updates on resolution?


    Prevailing Wage Issues

    14. In the past, the NPWC would accept private wage surveys from professional organizations in a specific industry. However, AILA members have been reporting that the NPWC is no longer accepting these surveys because they do not cross industries, even though the occupation is not found in various industries. The prevailing wage determination (PWD) states:

    The documentation provided with the requested survey is not acceptable. Specifically, the employer submitted survey does not provide a representation of wages for substantially comparable jobs in the occupational category as the data was not collected across the various industries in the area of intended employment. The employer limited the labor segment to a sample of Architecture Firms. Limiting the sample to a particular segment of the labor market does not meet the Departmental regulations at 20 CFR § 655.731 or 20 CFR § 656.40. Therefore, the OES wage is being issued.

    Will the NPWC still accept prevailing wage surveys from professional organizations which represent occupations which do not cross industries? For example, actuaries work almost exclusively for insurance companies, and a cross industry survey is not realistic. Similarly, architects primarily work within architectural firms, and such employers often rely on the American Institute of Architects’ wage survey data, which does not cross industries.

    15. At previous OFLC Stakeholder Meetings, AILA has expressed concerns to OFLC that the seven-day response deadline for a prevailing wage RFI is too short, particularly when someone is out of the office. Prevailing wage determination requests that are voided for failure to respond to an RFI only add to the NWPC's workload, as the employer will inevitably file a new request. Similar to OFLC’s recent extension of the timeframe to respond to sponsorship verification for PERM applications, will the NPWC consider extending the RFI timeframe to 30 days, consistent with other regulatory response processing times?

    16. At the June 2017 Stakeholder Meeting, we discussed whether the NPWC would consider a mechanism to reopen voided prevailing wage determination requests where the employer did not receive the RFI. OFLC stated that it would consider implementing an option for employers to file an RFR in these instances. Has NPWC further explored implementing the RFR option for cases denied due to non-receipt of the RFI?

    17. At prior Stakeholder Meetings, we have discussed the length of time required to process a redetermination request or a request for Center Director review. These processes take as long as filing a new prevailing wage determination request in many cases, and we remain concerned that these lengthy processing times are causing some employers to file new prevailing wage requests instead. This adds to the NPWC's workload and may cause underlying substantive issues relating to prevailing wage determinations to remain unknown by OFLC since OFLC is not made aware of the issues through the review escalation process. A careful review of an issue with a determination raised through the Center Director review process, for instance, might result in a change in policy or at least a clarification of the purpose of an existing policy. This would also allow more transparency to the process, consistent with the President’s Executive Orders. In light of this, will the NPWC make efforts to reduce processing times for redetermination and Center Director review requests to encourage more employers to utilize these processes?

    Updated 09-13-2017 at 11:10 AM by JStewart

  2. FAQ's and Other Forms of Administrative Guidance

    by , 09-12-2017 at 12:07 PM (Joel Stewart on PERM Labor Certification)
    A Practice Pointer on FAQ’s, “Do DOL FAQ’s Serve as Guidance or Law,” was recently posted on the website of the largest association of immigration lawyers in the United States. According to the Pointer, FAQ’s serve as guidance, not as law, and cannot be used to create new requirements which do not already exist in the form of a regulation.

    The Practice Pointer goes on to discuss legal decisions by BALCA, Federal Courts, and the PERM form 9089 itself, since forms first approved by the Office of Management and Budget and then published in the Federal Register have the full force of law. These legal sources suggest that FAQ’s are not laws but only policy.

    While FAQ’s may only seem to serve as guidance, the analysis of this guidance requires a broad interpretation of the legal effect of FAQ’s. In the context of the total scheme of current administrative law principles, this analysis involves far more than the FAQ’s themselves.

    In PERM workshops, conferences, blogging and other forms of media, including in the PERM Book III, I have presented a discussion entitled, “What is the Law.” My concern is that administrative law in the United States has become a confusing maze of regulations, administrative law judge decisions, FAQ’s, guidance in memos, on-line comments, and other forms of ‘policy’ generated by federal agencies such as the US Department of Labor. “What is the Law” categorizes these elements on a continuum based on their similarity to laws at one end of the spectrum and mere statements of policy at the other end.

    It was my conclusion – and I am especially thankful to my acclaimed colleague, Attorney Michael Piston, who labored intensively on this subject for several years, that FAQ’s may sometimes be more than a narrowly drafted form of guidance – and may actually be something more akin to substantive legal requirements – if they are a reasonable and do not conflict with the regulations.

    Mr. Piston’s article, “What Is the Law?” has been incorporated into the PERM Book III,

    “As in virtually every other form of administrative law, the rules pertaining to the labor certification process do not spring from a single source, but a whole slew of them:


    1. The Immigration and Nationality Act (INA),
    2. Department of Labor (DOL) Regulations
    3. Instructions to Form Eta 9089
    4. Decisions Published by the Federal Court of Appeals
    5. En Banc and Panel Decisions of the Board of Alien Labor Certification Appeals
    6. Decisions of the DOL Administrative Review Board (ARB)
    7. A Plethora of “administrative guidance”
    8. Agency comments published in the Federal Register,
    9. DOL Answers to Frequently Answered Questions (FAQs),
    10. Minutes from Stakeholder Meetings
    11. Agency Memoranda
    12. Letters from DOL to Attorneys or Members of the Public
    13. DOL Speeches and Answers to Questions at AILA or Other Conferences


    It is the unenviable task of the diligent labor certification practitioner not only to acquaint himself with all these various sources, but also to determine how much weight to assign to each, and which to prefer in the event of apparent conflict among their varied provisions.”

    Due to the complex structure of modern federal administrative law, government agencies sometimes consider points of view that promote administrative efficiency at the expense of Due Process and other reasonable concerns of Stakeholders. My recommendation is to fall in step with the reality that seemingly vexatious FAQ’s must be understood in the context of the broad range of elements described above and seek solutions that flow from the totality of these laws and interpretations.
  3. Is Your PERM Travel Requirement Conjunctive or Disjunctive?

    by , 08-24-2017 at 03:11 PM (Joel Stewart on PERM Labor Certification)
    In a recent case, a BALCA panel reviewed an IT case involving the issue of advertising for multiple, complex job descriptions and requirements – so complex that the Board found it violates the regulations. (Op ensoft, Inc., 2013-PER-867 (BALCA, August 22, 2017).

    The technical language used by the employer requires concentration to understand the nuances of the court’s decision.

    On Form 9089:

    Occupation: Software Developers Applications. SOC 15-1132.

    Requirements: Master’s degree in an IT Related field or, alternatively, a Master’s in Computer Science, MBA, Engineering, CIS, MIS or Related. No
    experience requirement.

    Description of Duties: Development of Java Enterprise Edition JEE applications. As a Sr. Java Developer responsible for analyzing, designing,
    developing and documenting JEE projects within central JEE application development environment. Must have knowledge of Struts JEE Application
    framework, JSP/Tiles, Spring framework, tag libraries, iBatis and sQL and Oracle Database Technology Etc. Must be willing to travel, perform
    feasibility studies and interact with clients for different long and short-term projects.

    In the recruitment steps, including http://www.monster.com/
    and newspaper advertisements in the Atlanta-Journal Constitution and Atlanta Business Chronicle:

    COMPUTER/IT.

    Entry Lvl to Sen. Lvl AQ Analysts w/ foll. Skills: WinRunner, LoadRunner, Silk, Quick Test Professional, TestDirector, Rational Suite, SQA Suite, SQA
    Robot, SQA Manager, SQA Test Log Viewer, & SQA Comparator etc.

    Entry Loll to Sen. level Java Developers w/ fall skills: Struts JEE Application framework, JSP/Tiles, Spring Framework, tag libraries, abatis’ & SQL & Oracle Database Technology Etc.

    Trav. & reloc. may be reqd. Send resume, ref. & sale. req. to open soft, Inc., 3040 Carrick Road, Cumming, GA 30040.

    The Certifying Officer denied the application because the advertisements included the phrase, “Trav. & reloc. may be reqd.,” although the ETA
    Form 9089 did not include relocation as a job requirement. This violates the regulation 20 CFR 656.17(f)(6) and 656.17(f)(7) because the language on the Form does not match the language in the ads. This much is black letter law in PERM applications.

    The employer argued on reconsideration that based on a previous decision, Microsoft Corp., 2011-PER-324 (Feb. 29, 2012), the ads were placed
    to fill multiple positions, and not all the positions it advertised for required relocation. The employer asserted that “based on the language and
    context of its advertisements, applicants would understand that there are some positions that require…. relocation and some positions require [n]one because of the disjunctive language used by the employer to define multiple positions in the ads.”

    The Board disagreed citing the “chilling effect on potential applicants” since they could reasonably assume that travel and relocation might apply
    to any or all the listed jobs.

    No legal brief or position was filed with the court by the Employer or by the DOL.

    The Board reviewed the case and noted that the Microsoft ruling applied only where employers use the specific, narrowly defined language which was consistent with the FAQ’s and guidance which had been discussed in a Stakeholder Meeting, i.e., “some positions require travel,” would be
    acceptable, and that each case is fact-specific, requiring separate inquiries as to whether applicants could have been misled into thinking that travel might be required for all the jobs listed. Many BALCA decisions were cited, which, unlike the Microsoft case, had ruled against the Employer because of perceived ambiguities about which job offers had travel requirements.

    The Board noted that Microsoft involved applications with different educational levels either with a Bachelor’s degree or a Master’s degree which demonstrated to job seekers that the positions ranged from entry to senior level.

    Neither of the decisions, Microsoft, or the current one, are en banc and therefore lack any semblance of precedential value, however, it is important to note that except for Microsoft, all the decisions cited by the Board are held against the employer.

    The decision contains many subtleties and distinctions which stakeholders should read very carefully to understand where to draw the fine line for
    advertisements including multiple jobs which may or may not require travel or relocation. Whether conjunctive or disjunctive, employers need to use the recommended language that ‘some positions require travel’ and separate the positions and their requirements more clearly in the ads.

    In 2010, I wrote on this topic in my blog on ILW.com in a slightly broader context, Is PERM Experience, Education, and Training Conjunctive or Disjunctive?

    See http://blogs.ilw.com/entry.php?6431-...ctive&bt=46856

    Updated 08-24-2017 at 03:21 PM by JStewart

  4. BALCA Forgives Electronic Error

    by , 06-15-2017 at 09:54 AM (Joel Stewart on PERM Labor Certification)
    Due to a computer glitch, the last sentence of a job description on the electronic PERM form got cut off and disappeared from the Form. [1]

    When the C.O. audited the application and asked for a complete copy of the form, the employer tried to correct the deficiency by typing in the missing phrase.

    Not satisfied with the employer’s segmental approach, the Certifying Officer denied the application, saying that an electronic fowl-up could not be forgiven and, according to the regulations, employers cannot make corrections to PERM forms.

    The PERM regulation states that a substantial failure by the employer to provide documentation requested by the C.O. will result in the denial of a PERM application. The Board uses a two-part test[2] to assess the sufficiency of employer responses: (1) whether a C.O. reasonably requested the documentation, i.e., the documentation was readily, or at least reasonably available to the employer, and (2) whether the omission of this documentation is material enough to constitute a “substantial failure….to provide required documentation.”

    The Board agreed that the requirement to provide a signed copy of the form was reasonable and that the failure to provide a complete copy would normally constitute a substantial failure. However, the employer provided an affidavit stating that it had typed the entire sentence on the form and that, but for the glitch, the form would have been complete.

    The employer also pointed out that the missing language appeared elsewhere as in the prevailing wage request in part K of the PERM Form where the employer had written the foreign worker’s experience in cloned language.

    Since the failure to submit an original, completed form appeared to be an electronic error, the Board decided the omission was not material and ordered approval for the employer.


    [1]Spirent Communications, Inc., 3013-PER-2757, May 18, 2017

    [2]SAP America, Inc., 2010-PER-1250, April 18, 2013 (en banc); Accent-Media Productions, Inc., 2012-PER-712, September 23, 2015.

    Updated 06-15-2017 at 10:03 AM by JStewart

  5. Some Apples Fall Far from the Tree

    by , 05-03-2017 at 10:24 AM (Joel Stewart on PERM Labor Certification)
    The US Department of Labor recently issued two denials of PERM certification to Apple, the first US company with a market value above $700 billion.

    In one interesting case upholding denial of PERM approval, the Board of Alien Labor Certification (BALCA) cited important principles relating to typographical errors on the application form 9089 filed with the labor department by employers. In reporting the details of an alien worker’s experience gained over a period of 72 months with different employers, mostly abroad, the employer mistakenly wrote only 69 months of qualifying experience. See Apple, Inc., 2012-PER-03515 (April 24, 2017).

    The PERM process was created at the end of 2004 to promote expedited processing of applications which had previously been backlogged as much as seven years. Some delays had been caused by lethargic bureaucratic procedures, while others had to do with corrections, modifications and supplements to existing record files. The Department of Labor asserted that the new PERM process would use a zero-tolerance policy for any kind of errors, thus eliminating most reasons for long delays.

    After the PERM process began, the very first case to be appealed was HealthAmerica, in which an Employer had made a simple error on the form by typing the wrong date of publication for a newspaper advertisement. The regulations required two Sunday ads, but the employer (who had indeed placed two Sunday ads as required) put the date of the second ad eight days after the first date.

    The mistake seemed to be so insignificant that the employer was joined by the American Immigration Lawyers Association, which filed an amicus brief to appeal the decision. They argued that if the DOL applies a strict, zero-tolerance policy in its determinations, the electronic on-line form provided to the public should be user friendly to warn of data input errors. BALCA agreed and held that denial of certification for a minor, non-substantive error could not stand.

    In 2008, however, DOL overcame BALCA’s lenient policy towards typos by issuing regulations that specifically prohibit any kind of correction to a PERM application after it has been filed. Additionally, the new regulations prevent employers from providing such documentation because “typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements.” DOL believed that the correction of even the smallest typographical errors would be a “significant and costly resource drain on the PERM case management system and staff.”

    In another case, Apple, Inc., 2012-PER-03516, (April 24, 2017) decided the same day, BALCA upheld denial of certification because the employer had not matched the educational requirement (a Master’s Degree in Business, Operations, Supply Chain, or a related field of study and thirty-six months of experience) with the statement of the foreign worker’s experience (a Master’s degree in Mechanical Engineering).

    The employer argued that the coursework of the worker in graduate school, also listed on the form, required the same amount of time, coursework and specialized education as a Master’s degree in Business Operations, or Supply Chain, but the Board of Alien Labor Certifications disagreed, holding that despite the fact that the worker had equivalent coursework, “there is a difference in being exposed to a few…related courses during one’s graduate-level matriculation versus being immersed in a full course load of business classes (or a Master’s level business program) while in graduate school.”

    Denial of the first Apple case was based on a clear typographical error, while the second case was based on a subtle interpretation of the foreign worker’s educational qualifications of coursework in a field of study instead of a formal college level degree in that field of study.
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