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Joel Stewart on PERM Labor Certification

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  1. 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

  2. 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.
  3. Searching for Workers in All the Wrong Places

    by , 04-19-2017 at 03:49 PM (Joel Stewart on PERM Labor Certification)
    Employers who seek labor certification to employ foreign workers must prove that they have not found suitable US workers who are qualified, willing, able and/or available. Somewhere in the cosmos, there must be somebody, but US workers are not extraterrestrials to be found somewhere in the far reaches of outer space.

    It’s not rocket science, either. The law has devised a down-to-earth method to search using familiar forms of advertising. For most jobs, workers may be found through the state workforce agencies, which maintain databanks of local workers who may be looking for the exact job offered by an employer, ads placed in two Sunday newspapers, and notices posted at the employer’s place of business or through in-house media. For professional positions (defined by a list of occupations maintained by the Department of Labor), three additional forms of recruitment are necessary.

    When workers appear on the horizon, they must file applications according to the instructions of the employer. This may be by sending resumes by mail, email or fax, or even by applying electronically at the employer’s website.

    Difficulties arise about how to differentiate between job referrals and job applicants. Referrals are persons whose names may be matched on state job service sites, or whose names may appear on lists of potentially available workers, while applicants are persons who step forward to apply for job opportunities in response to advertisements with instructions provided by employers.

    In the PERM program, workers may be referred to employers whether they are authorized to work or not. This arises from the fact that verification of work authorization is not necessarily included in the dossiers of the State Workforce Agencies or other sources of recruitment.

    A government program known is E-Verify, intended to maintain work authorization status for everyone in the United States, is controversial because it does not meet the stated objective to provide safe, reliable information about all job applicants. E-Verify is available in some, but not all, states, but even in those states where it is in place, workers are only E-verified if they appear personally at the agency. Those who apply on-line are not verified at all.

    Even if workers are verified according to E-Verify, they may not meet the definition of U.S. workers as defined in the PERM labor certification program. Since PERM is a program to find permanent, full-time employees, U.S. workers are limited to persons with permanent, full-time work authorization. Specifically, these can only be American citizens, permanent resident aliens, US Nationals, Asylees, Refugees, and certain foreigners who may have qualified for amnesty under the Immigration Reform and Control Act of 1986.

    Employers are usually reticent to ask workers directly if they have permanent employment authorization, because under E-Verify and employer-based verification using Form I-9, employers cannot discriminate against workers who have temporary and permanent work authorization. The same agency that requires detailed verification of each worker also prohibits misuse of the system to prejudice individuals because of race, religion, national origin and so forth.

    The Department of Labor often denies PERM applications after issuing a determination that the employer failed to explain why the U.S. workers who applied were lawfully rejected. The denials are fair in those instances when the workers were indeed U.S. workers as defined in the PERM Rule, but not fair when the workers were persons with temporary work visas or even with no work authorization at all.

    Little attention has been given to this discrepancy in the PERM Rule. Large employers often use other techniques to ferret out persons who are not defined by PERM as U.S. workers. One method is to place special language in the advertisement about whether job applicants need sponsorship. This only identifies persons who answer affirmatively because they would like the employer to sponsor them for permanent residency status and, therefore, to work full-time and permanently in the U.S.

    According to USCIS policy, employers fear asking workers to prove their work authorized status, whether temporary or permanent, until after they have been hired and have reported to work. This sometimes lead to the embarrassing situation that workers must be terminated during the first day of employment when it is discovered that they are not properly documented.

    The work authorization verification program was created in 1986. Prior to that time, anyone could work as a natural right, including persons in unlawful status. In recent years, however, the issue of documentation and the right to work has commanded front page attention. In a nation of immigrants, the country struggles to determine which persons should be permitted to remain and which persons should be removed to the place from whence they came – even as local labor shortages exist in many sectors of the economy and in every part of the country.
  4. What Are Normal Job Requirements in the USA?

    by , 03-30-2017 at 11:51 AM (Joel Stewart on PERM Labor Certification)
    A little-known requirement in the PERM Rule states that employers must offer to train job applicants, if they can acquire the education, training, experience, and skills necessary to perform the job duties in a reasonable period of time.

    While deference is given to the Employer, whose judgment is the best arbiter of such matters, government policy regarding the requirements themselves are tortuously ambiguous.

    To be fair to US workers, job specifications are strictly regulated by government standards in official publications. Employers must look to an on-line catalog of jobs called the “O*Net,” which in turn is based on normal training requirements detailed in the SOC (Standard Occupational Code). The SOC was introduced in 1998, and conflated approximately 12,000 occupations that previously existed in the DOT (Dictionary of Occupational Titles) to 23 major occupational groups and about 1,000 detailed occupations.

    The DOT was the bible of employment immigration practice for many years, and its job-related data were unquestioned. In the late 1980’s, I went to visit the birthplace of the DOT, the North Carolina Field Office, where Mr. Stanley Rose and his team relentlessly determined and re-determined constantly changing job requirements for all 12,000 jobs known to exist in the USA.

    Mr. Rose showed me some of the office procedures, including typical surveys made of US employers to determine their normal requirements, but the results of these surveys were often at odds with reality. Because employers had always suspected that the data obtained for publication in the DOT were not reliable, I asked Mr. Rose, who stated that many of the job requirement summaries were educated guesses.

    Mr. Rose and his team were dedicated and well-intentioned professionals, but the lesson to be learned is that statistics used in the foreign labor certification program cannot be expected to be 100% correct, and this bears on question H-12 on the PERM ETA Form 9089. This question asks,

        12. Are the job opportunity’s requirements normal for the occupation?
        If the answer to this question is No, the employer must be prepared to provide documentation demonstrating that the job requirements are supported by business necessity.


    If the employer answers “No,” an audit may be triggered and denial of certification may ensue; and if the employer answers “Yes,” and the DOL statistics do not support the employer’s conclusion, this may also trigger an audit and denial.

    Employers need to be aware of the fact that there are “real world” occupations and training requirements – and there is a parallel universe – the “PERM world.”

    Tread carefully lest you fall astray!

    Updated 03-30-2017 at 11:53 AM by JStewart

  5. DOL Reverses Policy on Unquantified Skills

    by , 01-09-2017 at 10:41 AM (Joel Stewart on PERM Labor Certification)
    Question from a reader:

    Dear Sir,

    I read your blog post regarding the December 6, 2016 DOL stakeholder meeting.

    In this meeting, the Office of Foreign Labor Certification agreed to stop issuing denials based on the outcome of a BALCA decision (SmartZip Analytics, 2016-PER-00695).

    My case is also currently with BALCA for the same reason as
    Smart-Zip Analytics, i.e., unquantified skills in section H.14

    Now that DOL has recognized that cases with unquantified skills should be reconsidered based on the lack of guidance provided by the agency, is there something I can do at my end to
    accelerate the processing of my case with BALCA?

    Warm Regards
    A.

    Answer:

    Dear A.,

    Whenever a new policy is introduced, the agency cannot correct itself until it passes through a time-consuming learning curve. During that time, some applications will be adjudicated, or readjudicated, according to the new rule, but many will not.

    Your attorney or representative should assume the responsibility to make sure that your application is properly processed by DOL. In some cases an audit or denial may be issued.

    In case of an audit, an appropriate response may be provided, and the DOL should approve the application.

    In case of a denial, a “Request for Reconsideration” may be provided. The DOL uses the reconsideration process to correct cases that were denied but should not have been denied based on newly announced policies.

    Since your application was already sent to BALCA, your attorney or representative may file a request with BALCA requesting the application be returned to the Atlanta DOL processing center per the new change in the policy. Since this normally occurs with the consent of Atlanta, the request could be addressed to both the Certifying Officer in Atlanta and the Board of Alien Labor Certification Appeals in Washington.

    With kind regards,
    Joel Stewart
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