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Joel Stewart on PERM Labor Certification

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  1. PERM Perspectives under Trump

    by , 09-22-2017 at 11:13 AM (Joel Stewart on PERM Labor Certification)
    The polices of the Trump Administration are not only to protect American workers but also to enable qualified foreign workers to contribute to the economic development of the United States. The job of gatekeeper falls on the shoulders of the Department of Labor, Office of Foreign Labor Certification, in Washington, DC, and its processing centers in Atlanta, Georgia, and Chicago, Illinois. The labor certification process is designed to determine when and where employment based immigrant visas should be granted.

    Permanent Electronic Record Management (PERM) was begun in 2005 to enable rapid electronic review of applications filed by employers. Previously, long processing backlogs often took five years or more. The PERM process, based on electronic review of attestations and requiring employers to swear under penalty of perjury to the truth of the information presented in the applications, promised to speed things up.

    Prior to filing PERM applications, employers must first recruit for US workers, interview them when appropriate, and prepare reports to document whether there were any able, willing, qualified and available US workers.

    Employers prepare applications electronically with DOL on form 9089. The forms are reviewed by computers that indicate which applications should be immediately certified and which applications, because of non-standard responses or specific areas of concern, need to be reviewed by DOL analysts who assist the Certifying Officer.

    It follows that the key to a timely, successful PERM application is to provide suitable answers to the questions on the form. If it appears that an audit is needed, the employer must submit the entire record file to the Certifying Officer, including a full report documenting all the recruitment steps taken and results of interviews.

    In accordance with the zero-tolerance policy used for electronic review, applications are frequently denied due to simple typographical errors which may seem harmless but will not be excused. The rationale for this is that the PERM process speeds up approvals by operating with great efficiency, even at the expense of denying cases with immaterial errors. DOL’s insistence on this is underscored by a 2008 amendment to the rule which makes it impossible for any PERM applications to be modified, corrected or altered after initial filing.

    PERM applications may also be denied if DOL believes that the job description, duties, minimum requirements, licenses, languages and special skills are not normal in the US. All standards must be accordance with DOL guidance published in the O*Net and the Occupational Outlook Handbook.

    The recruitment steps set forth in The PERM Book demonstrate that the DOL does not follow a single paradigm. Subtle but fatal discrepancies in wording often occur due to different kinds of media engaged in diverse forms of recruitment such as newspaper ads, internal notices within the employer’s organization, job listings in state workforce agencies, employer web sites, job search web site other than the employer's, on-campus recruiting, trade or professional organizations, trivate employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers, and radio and television advertisements

    Because employers describe job opportunities differently depending on the type of recruitment, similarity of language is not always possible. If information on the PERM form and recruitment are not a close match, denials may be the unwelcome result.

    The Department of Labor is empowered by the US Supreme Court to provide instructions and guidance as part of its function as an administrative agency, because interpretation of the laws is a necessary function. Attorney Michael Piston prepared an analysis of these powers called, “What is the Law” for the PERM Book III.

    Mr. Piston explains how any of the following criteria, even informal ones, may be used by the DOL to evaluate PERM cases for conformance to the statute:

    a. The Immigration and Nationality Act (INA),
    b. Department of Labor (DOL) Regulations
    c. Instructions to Form Eta 9089
    d. Decisions Published by the Federal Court of Appeals
    e. En Banc and Panel Decisions of the Board of Alien Labor Certification Appeals
    f. Decisions of the DOL Administrative Review Board (ARB)
    g. A Plethora of “administrative guidance”
    h. Agency comments published in the Federal Register,
    i. DOL Answers to Frequently Answered Questions (FAQs),
    j. Minutes from Stakeholder Meetings
    k. Agency Memoranda
    l. Letters from DOL to Attorneys or Members of the Public
    m. DOL Speeches and Answers to Questions at AILA or Other Conferences

    Despite all the complexities, the Department of Labor follows its mandate and approves bona fide cases which are carefully prepared and meet the requirements of the law intended to protect U.S. workers.

    Updated 09-22-2017 at 11:39 AM by JStewart

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

    by , 09-13-2017 at 11:51 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 12:10 PM by JStewart

  3. FAQ's and Other Forms of Administrative Guidance

    by , 09-12-2017 at 01:07 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.
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