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Chinese Immig. Daily
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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.
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
Question from a reader:
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?
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,
The US Department of Labor (DOL) has long held the belief thatemployers should not recruit for jobs requiring special skills or licenses if USworkers are available who could be easily trained. The DOL perspective on a trainingrequirement is not absolute, as long as employers can show that the on-the-jobtraining is not possible in a reasonable period of time.
The DOL accepts plausibleexplanations from employers who can demonstrate that it may take a great dealof time or expense to train someone who does not possess a special skill.
Employers often determine theability to perform the skill based on information listed in resumes of jobapplicants and reject workers because they did not appear to possess thoseskills. However, the rule is that US workers who apply jobs should not berejected on the basis of their resume alone, because they might qualify basedon some other combination of experience, education, or training.
To successfully defend specialskill requirements, employers can show businessnecessity, i.e., by demonstrating that the job requirements are essential toperform the job duties.
As a matter oflaw, the employer’s assessment of its own requirements and of candidates’abilities to perform job duties with special skills takes priority over theopinion of the Department of Labor, since employers are the ones most qualifiedto make those decisions.
In recent months,DOL has denied cases where job skills are not quantified, in part because theycannot be properly measured.
The matter hasbeen raised at meetings between the US Department of Labor, attorneys andemployers, with the result that guidance will soon be published regarding theproper way to list special skills in job offers.
A related issue isthatoften, when no quantification ofskill requirements is provided, the government simply concludes that jobapplicants (including the foreign worker beneficiary of the PERM application)need to prove that they worked with those skills throughout the entire periodof minimum experience required in the job offer.
Sometimes workersmay acquire skills in intangible way, such as through special hobbies,interests or life experiences. The important issue in these types of skillacquisition is not the quantification of how long or by what means a person acquiredthe skill, but simply whether the person possesses the necessary skill and howthe employer will determine that fact.
Employers shouldbe aware that it is difficult to assert that job applicants are unqualified toperform a specific job if details of skill requirements are not clearly stated inthe job offer and if job applicants are not interviewed to determine if theyare qualified -- even when their resumes do not clearly indicate that they possessthe necessary, special skills.
A meeting with the Department of Labor was held on December 6, 2016. The meeting provided an opportunity for stakeholders to pose questions regarding the PERM process. A wide range of topics was discussed.
1. Processing times. In 2016, there was a significant slow-down in prevailing wage determinations. While requests used to take one month, a backlog of almost six months developed in the second half of the year. DOL explained that because they have limited resources, they had to transfer examiners from the permanent program (PERM) to adjudicate temporary labor certification requests for agricultural workers. The need for agricultural workers is seasonal, so backlogs vary at different times of the year.
2. Tools for Prevailing Wage Requests. The Prevailing Wage Center uses the same tools as stakeholders, such as the O*Net database of occupations, information about commuting found in the Metropolitan Statistical Areas, and wage surveys. DOL advised that attachments with documentation should not be uploaded, because examiners do not have time to review the material. Instead, documentation should be summarized somewhere on the prevailing wage form 9141. Attachments would only be used if the employer asks DOL for redetermination or reconsideration.
3. Combinations of Job Duties. DOL recognizes that many occupations share similar job duties. When this occurs, the prevailing wage should be increased to a higher level (there are four levels in all). Where an occupation has shared duties, OFLC will assign the higher of the two wages.
4. Two Or More PERM Filings for the Same Job. OFLC can detect multiple filings by searching for the name of the employer and comparing the SOC codes in their applications. Stakeholders report that if two applications are filed for the same job, employers may expect a denial instead of an opportunity to withdraw. This is a change in policy, because in the past employers normally received an opportunity to withdraw one of the duplicate applications.
5. ACWIA. The American Competitive and Workforce Improvement Act applies to prevailing wage determinations for institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. Requests for prevailing wage subject to ACWIA take into consideration the type and size of employer and not just the type of job. Because DOL may not always recognize that a prevailing wage request is one which should be determined under ACWIA, employers may place an asterisk in the title field to correspond with a written explanation regarding ACWIA in another box.
6. Prioritizing Adjudications. The Atlanta Processing Center does not adjudicate applications for PERM based on first in, first out. Difficult cases take more time than others.
7. Unquantified Special Requirements and Skills. Specials skills are usually placed on the PERM Form 9089 in Box H-14. Terminology used in H-14 often includes words and phrases like “knowledge of,” “proficiency in,” or similar terminology. These special requirements should be quantified, but there is no DOL guidance on this subject. DOL has been denying applications that do not include quantification, but a recent decision from the Board of Alien Labor Certification (Smartzip Analytics, 2016-PER-695, November 9, 2016) has held that DOL should explain to employers how they may meet the requirement to quantify rather than deny applications for lack of guidance. In view of this important BALCA decision, OFLC has agreed to stop issuing denials and to provide guidance in the form of an FAQ.
8. Salary Range. OFLC has often denied PERM applications where employers listed salaries with phrases like “competitive salary,” “DOE [Depends on experience],” or “negotiable.” Many State Workforce Agencies have job order templates that do not permit employers to state wage ranges in a manner consistent with the PERM Rules. In Matter of Tek Services, LLC (2016-PER-207, (November 16, 2016), the Board reversed a denial where the employer advertised “competitive salary” instead of the one in the Prevailing Wage Determination. Based on this decision, DOL stated that it would approve cases that utilize salary ranges for job bank orders.
9. Harmless Error. Although harmless error does not exist in the PERM Rule, the Board has carved out exceptions which in some cases may include corrections for simple, typographical errors like the one where an employer typed the wrong date for the second Sunday ad. Both Sunday ads were properly placed on Sunday, but one of the dates reported by the employer on the PERM form was in error. DOL does not agree that changes on the form may be made to correct harmless errors. Instead, corrections may be made only after denial and appeal to BALCA.
10. Digitalized Signatures. DOL requires original signatures and does not accept electronic or digitalized versions of signatures.
11. Electronic Notification of PERM Letters. On December 1, 2016, the Board began to utilize electronic notification for audits, denials, requests for information, confirmation of withdrawals, and decisions from appeals, instead of hard copy notifications.
Updated 12-13-2016 at 10:27 AM by JStewart