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Joel Stewart on PERM Labor Certification

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  1. PERM: Government Error Queue

    by , 04-25-2011 at 09:33 AM (Joel Stewart on PERM Labor Certification)
    The DOL "government error queue" is a line for PERM cases which have been denied and sent by Employers to the CO with requests for reconsideration. This queue is available only in cases that have been denied due to an error on the part of the government. Other cases with request for reconsideration, whether denied due to Employer error or for any other reason, go into the "regular" queue.
    The qualitative difference between the two queues is that the government error queue is faster, maybe requiring a few weeks to obtain a corrected final determination, while the employer error queue may take several years. Although the designation of two queues is convenient, there will always be many cases which fall into a gray area but which may nevertheless be relegated to the employer error queue.
    The PERM Rule became the law of the land on March 28, 2005, replacing the previous pre-PERM Rule, which permitted employers to respond to requests for evidence from the DOL prior to receiving a final determination. Hence, under the pre-PERM rule, an employer would receive a Notice which set forth reasons why the CO did not wish to approve the application for alien labor certification.
    The practice of issuing a notice to request further information or to advise of some perceived deficiencies prior to issuing a final determination is routine in administrative law. For example, the USCIS may issue a Request for Evidence or a Notice of Intend to Deny, or both, prior to approving an application or petition. This form of Due Process ensures that correctable errors will not result in denials which then may require lengthy appeal processes or prejudice petitioners.
    The 2005 PERM Rule eliminated this Due Process safeguard by eliminating the possibility to correct harmless errors during agency review of the application. This lack of opportunity to respond to  deficiencies results in many denials that may be incorrect, but which can then only be reversed upon the presentation of evidence, documentation or arguments by the Petitioner in the post-final determination stage of proceedings.
    The Department of Labor purposely created the PERM Rule with less opportunity to provide rebuttal evidence to speed up the process and increase agency efficiency. Although these are admirable objectives, the practice, as applied, often results in unfair delays and prejudicial expenses to Employers.
    The current situation is that the Department of Labor now uses the mechanism of reconsideration after denial of certification to correct errors that may be caused by the government, but these motions may only be used after final determinations (denials) from the agency -- hence the creation of the "government error queue." At the same time, errors that the government does not believe were made by the DOL, but may have been made by the employer, go into a separate queue which may take several years.
    Not too long ago, motions to reconsider under PERM were taking about 2.5 years -- far longer than the expected processing time for PERM cases. In fact, PERM Final Determinations were originally heralded to take 60 days or less -- but this is a promise that has not always been kept.
    One of the premises of the PERM Rule is that an employer who receives a denial should refile the application with the error corrected, instead of entering into a series of time consuming arguments and rebuttals with the agency. While the idea of refiling instead of rebutting is an interesting, innovative idea with great merit, it does not work if the employer receives the denial after the end of the 180 day validity period for filing.
    Employers are required to start and complete the PERM recruitment process within 180 days, which includes a 30 day period (between 150 and 180 days) when recruitment is not permitted (except for one form of professional recruitment). Consequently, if an employer files a PERM case as early as possible (a period of about 61 days is the minimum time during which a PERM case may be prepared and filed by the Employer), and if the government takes up to 60 days to issue a determination, the Employer may still have time to correct the error, and to refile the PERM application without encountering the costs and efforts of the entire recruitment process.
    Unfortunately, delays in PERM processing, beyond the 60 day period promised by the Agency, make it impossible for employers to refile applications, although they are so instructed on denials issued by the DOL, as it refiling were a viable option.
    The point of all this is that the DOL, in its PERM rule, now uses denials to notify employers for the first time that there may be a correctable deficiency or problem and has eliminated the opportunity for employers to correct the problem prior to receiving a denial.
    While the CO does not appear to perceive any difference in the two (pre-denial or post-denial) types of reconsideration, the post-denial procedure is clearly onerous and unfair, making it difficult for Employers to correct simple typographical errors or mistakes without going to a lengthy and complex appeal process or to begin a new and expensive recruitment process.
    Surprisingly, there is a little-known part of the PERM Rule which permits the CO to request information from an Employer prior to issuing a denial, just as in the old Rule. This is found in 20 CFR 656.20(d), which states that the CO may (whether in the course of audit or otherwise) "request supplementation information and/or documentation."
    Under this regulation, just as in pre-PERM procedure, the Certifying Officer may issue a request for evidence, instead of issuing a denial, thereby offering an opportunity for pre-denial rebuttal.
    The DOL could easily use this regulation to resolve many problems of "harmless error" -- including typographical errors, omissions, and misunderstandings by offering the Employer an opportunity to rebut a negative finding prior to issuing a denial.
    Just think how the Health America debacle could have been avoided, with all the legions of articles and interpretations that have been written about it by legal experts, and without subjecting BALCA to the difficult task of remanding the case when the regulations clearly did not permit remands -- all of this could have been avoided, if the CO had simply asked the HealthAmerica company to clarify that the two advertisements had indeed been placed on Sundays as required by the regulations.
    One must also take notice that many errors on the PERM form occur due to ambiguities on the PERM Form 9089, vague instructions and interpretations by the Agency, inherent "bugs" in the on-line filing system, and problems inherent in the PERM Rule itself .
    The current process requiring Employers to appeal to BALCA to resolve simple errors, many of which are innocent and harmless, clogs up the Board's docket and creates unnecessary and unfair delays, which were not anticipated by the reenginering process that resulted in the PERM Rule.
  2. PERM: Proof of Publication on Website

    by , 04-18-2011 at 06:11 AM (Joel Stewart on PERM Labor Certification)
    An Employer received a denial for failure to provide copies of the start date and finish date of more than 10 days of advertisements on the Employer's websites and dated from the Internet Browser. I recommended the following language as part of a motion to reconsider:
    "The Employer provided a copy of the advertisement from the employer's website.  In addition, the Employer stated under penalty of perjury on the PERM Form 9089, and again in Recruitment Report submitted in response to the Audit Notification, that the job had been advertised on the employer's website for more than 10 days.
    While the PERM regulation recommends that, "The use of the employer's web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application," the world "can" in the phrase "can be documented" does not have the same legal meaning as "shall" or "must."  In American jurisprudence, the word "can" is interpreted as "may." Thus the clear meaning of the regulation is that dated copies are not required to be provided but "can" or "may" be provided at the discretion of the Employer.
    By his signature in section "N" of Form 9089, the employer has taken full responsibility for the accuracy of the representations made in the PERM Application, Form 9089, and declared under penalty of perjury that he has read and reviewed the application and that to the best of his knowledge the information contained in the application is true and correct. The application states that the advertisement for the job vacancy appeared on the employer's website from for more than 10 days. The employer reiterated this fact in the Recruitment Report that he signed. In addition, the employer submitted a cpoy of the advertisement from the employer's website.
    Based on this documentation, the employer has documented and attested to the appearance of the advertisement for more than 10 days on the employer's website.
    There is no mandate in the regulations that the employer must provide a print out of every single day that the advertisement appeared. Moreover, the regulations do not specify a particular number of days during which the advertisement must appear on the employer's website. In the instant case, the Certifying Officer has a received a copy of the printout and the employer's declarations under penalty of perjury that the advertisement actually appeared for more than 10 days.
    Although the PERM Rule is silent as to the level of evidence requied to document recruitment, the Burden of proof to prove the advertisement is the preponderance of the evidence according to general administrative law principles.
    Here, where the employer signed both the Form 9089 and the Recruitment Report, and the actual dates are documented on Form 9089, and in the absence of any indication to the contrary, the Employer has met its burden of proof both in the letter and spirit of the law that the advertisement for the job vacancy appeared on the employer's own website on the dates so stated."
  3. PERM: Alien not qualified to Adjust Status!

    by , 04-10-2011 at 07:27 PM (Joel Stewart on PERM Labor Certification)
    Every week there are many new horror stories about PERM cases.
    Attorneys like to blame the DOL whenever possible, but the fact is that some of the attorneys are not qualified to accept PERM cases because they have not studied the regulations or do not have a background in general immigration law principles.
    This week a gentleman from Indonesia consulted with me about his PERM case. He works as an Asian chef in a Florida restaurant and wants to obtain permanent residency.
    However, his story starts about 10 years ago, before PERM was enacted in March of 2005.
    He came to the US in legal status, but thereafter became illegal, in 2002, had to register for NSEERS special registration, the US government program to register male aliens from countries with Muslim majorities in the population. After registering, he was referred to deportation court, because he had been out of status at the time of registration.
    This particular Indonesian is a Christian. He alleged fear to return to Indonesia, where he could be persecuted.
    He requested asylum from the immigration judge, and was denied, but nevertheless the judge granted him "withholding." This status enabled him to stay in the U.S., but without the possiblity to apply for residency, citizenship, travel out of the US  or to convey any immigration benefits to other family members.
    Naturally he would like to become a permanent resident, so when a friend referred him to a lawyer he was advised to file a PERM case as an Asian cook. The lawyer said the PERM case would be difficult, but that with luck their PERM case could be approved, and after that he could become a permanent resident alien.
    Now, four years later the alien does have an approved PERM case and an approved I-140 Immigrant Visa Petition, and is waiting on the quota to receive a green card.
    But when he came to see me on a separate matter, I asked him about his immigration stauts and, unfortunately, had to give him some very bad news. Since he was granted Withholding, he cannot adjust status to a permanent residency visa,  such as a 3rd preference Asian cook.
    The reason is that he has an order of deportation -- by definition, all aliens granted withholding have to have an order of deportation first -- and with this order, he can not "adjust status" to permanent residency. He can only obtain residency by leaving the country, but then he has to wait abroad for ten years because he has been ordered "deported".
    Furthermore, he was out of status for many years after his tourist visa expired and is therefore subject to unlawful presence, which also carries a penalty of 10 years banishment.
    The client was very surprised, since he thought that with an approved PERM, he would just wait for his priority date to become current.
    There are some other possibilities in his case, but nothing to do with PERM. He has a child born here in the US, and in some shape or form this equity may enable him to apply for some other form of relief in the future, although to cure unlawful presence, he needs a parent or spouse legalized in the US. An American child will not suffice.
    Meanwhile, the PERM case, and the approved I-140 will come to naught. I fear that there are many other persons who have approved PERM case but are not qualified to receive a green card!
  4. PERM: Wrong Box Checked on I-140

    by , 04-04-2011 at 06:43 AM (Joel Stewart on PERM Labor Certification)
    I received an inquiry from an attorney who is concerned about the USCIS denial of I-140 employment based petitions that have the wrong box indicated for category of petition (The choices on the petition include different preference categories 1-3).  For cases involving PERM, only the 2nd preference or 3rd preference boxes may be chosen.
    The attorney states the following:
    "I noticed that you have written a few times about the I-140 'wrong box' problem.  I am considering a legal challenge to that practice in an effort to see if I can get a whole lot of people their money back under what appears to be a double filing fee. I'm working with another attorney who has more constitutional law/APA experience and he's very concerned to  an estimate of how many times USCIS has denied an I-140 for the wrong box being checked. We are especially interested in EB-3 skilled worker/professional denials for 'wrong box' submissions after the 01/06/2010 I-140 form revision because there is no advantage to be gained from checking the wrong box and because the attached labor certification shows clearly what category the petition should be filed under."

    The attorney asked me if I had any estimate based on my experience and work with AILA as to how many I-140's have been denied since 01/06/2010 based on wrong box submissions. Unfortunately, I do not have access to this type of information, but I believe that such errors are not uncommon. 

    However, the attorney implies that 'wrong box' mistakes on the I-140 may be driven by an attempt by Petitioners to gain some advantage in the preference process.

    Frankly, I had never thought about that.

    The examples I have seen were simply errors (typographical) on the forms, in which someone filled out the form and simply checked the wrong box. Some attorneys believe that "filling out forms" should be relegated to marginally qualified persons whom they hire to assist them.
    In actual fact, the work of properly filling out forms is very demanding and requires a great deal of education, experience, and training.

    One case I saw was a third preference filed as an EB-1-3. There was no advantage to filling out the wrong box as a multinational executive. The attorney and client had a great deal of difficulty after the error in filing, since the Service continued to process it as an EB-1-3, and the client was clearly qualified for 3rd preference. The confusion went one for years, with RFE's, Denials, and appeals, because the attorney (and subsequent attorneys) still did not realize that the wrong box was checked!

    This confusion occurred because the service continued to adjudicate the petition as a multinational (accordng to the box checked) and not as a third preference based on a labor certification. The Service did not notice (or care) that the documentation, including an approved PERM, were not for first preference, and the three attorneys who handled the case did not understand or correct the 'wrong box' mistake.
    I believe that 'wrong box' mistakes are not uncommon and are usually just the result of incompetence.

    The current version of the I-140 form is easier to understand than before and should eliminate most of the unfortunate errors made in 'wrong box' selection.
    As I have been practicing for many years, I recall a time when the Service would offer to correct the form if the 'wrong box' was checked, or, if not, the petitioner could request the error to be corrected. I even saw cases, albeit years ago, when the Service wrote to the Petitioner asking if they would like to change the category checked on the form (usually from 2nd to 3rd) if it seemed that an approval could be issued in 3rd but not in 2d.
    However, in recent years the Service has taken the position that the only way to correct such an error is to file a new petition with a new fliing fee.
    Most observers realize that nowadays the Service has not only increased its fees but seeks to require petitioners and applicants to file and refile, just to charge more money from and also to discourage some types of filings.

    Unfortunately, the Service is not delivering the quality determinations that were promised when the fees started to go up. Fees are currently at astronomical levels, and still rising, while service quality in adjudications has plummeted to new lows.
    Currently, there are no fees for PERM processing, however, it is possible that they may be instituted at some time in the following.

     
     


     

     
  5. PERM: Foreign Language Undefined

    by , 03-28-2011 at 06:45 AM (Joel Stewart on PERM Labor Certification)
    The question of a foreign language requirement proposed an existential question to an Attorney who consulted with me recently.
    The 9089 stated "Yes" to the question, "H-13" which asks, "Is knowledge of a foreign language required to perform the job duties?" The questions continues, "If the answer to this question is 'Yes,' the employer must be prepared to provide documentation demonstrating that the language requirements are supported by business necessity."
    The question seems simple enough, however, in the case I am discussing, the Employer answered "Yes" but did not indicate any foreign language anywhere on the form. The documents in the record file also do not speak of any language requirement.
    I reviewed the case: the 9089, audit, response to audit, and denial, including the Notice of Filing, advertising, prevailing wage request and determination. To my surprise, I could not find any reference to the language requirement. In fact, I could not determine which foreign language the Employer required, or how, when or why it would be used.
    Not surprisingly, the DOL denied the application, but I why?
    The first basis for denial was that the advertisement did not contain the language requirement, and was therefore defective, since it did not apprise the workers with sufficient specificity about the job.
    This is certainly true, but I wondered whether, as a matter of law, a foreign language requirement must be stated in an advertisement.
    The PERM Rule requires travel requirements to be in the ad, but not foreign language requirements, to be in the ad, so I thought that using common sense (and if not, then the rules of statutory construction which is  common sense codified into law), one could come to the conclusion that if the regulations specifically require travel requirements to be advertised, and not foreign language requirements, then it could not be possible that an application can be denied for not having the foreign language requirement in the ads. If the agency had intended the inclusion of the foreign language requirement in the advertisement to be a requirement, then it would have so stated.
    The CO went on to deny the application for additional reasons, all having to do with the foreign language requirement, including the fact that the requirement was not in the NOF, the prevailing wage, the 30-day job order, etc.
    At first glance I thought that the DOL was probably right, but after thinking about this for several days, I came to the conclusion that the application should not have been denied for lack of the language requirement in the ad. 
    The DOL has long held (for public policy reasons) that if an employer does not include job requirements in the ad, there is no harm to US workers. In fact, the lack of requirements in the ad opens up the job to a wider pool of applicants, and it is the Employer wo may be prejudiced,  by an excessive number of unqualified applicants. The Employer would have to interview the referrals, and demonstrate why they are not able to perform the job duties. 
    In the present case, however, the only possible hint as to what kind of language requirement was needed is the fact that the Employer is the subsidiary of a French company in the U.S.
    I say hint, because the name of the company does not clearly convey that it is French. One would have to research on the internet or the corporate records to discover this fact.
    As the Employer's attorney explained, they answered "Yes" to the language requirement question, because the Employer thought that the (French?) language might be useful. Of course, anyone who has completed PERM 101 knows that an Employer may not couch preferences in terms of necessity, but leaving that aside, there was no other mention of a foreign language in any part of the PERM record file.
    This brings us to the next stage of our analysis. It seems that the requirement, as stated by the Employer, was not "perfected." By this, I mean that the statement of a foreign language was only indicated by the "Yes" answer to H-13, but the requriement was never defined. The Employer would have to complete or perfect the requirement, if any, by placing the specific language in the context of the job description, requirements, special requirements, or in some place on Form 9089 where the use and requirement of the language would be identified.
    In its current form, the foreign language requirement was not really a requirement, but an undefined fragment that at best stated an inchoate desire to include the requirement.
    I advised the Attorney for the Employer not to appeal but file a new application -- and this does seem to be the most expeditious way to handle the problem -- but I would also like to underscore that the DOL Denial (because the language requirement was not in the advertisement) is not in accordance with the regulations or policy of the Department of Labor, and that if the Employer wishes to appeal, it would be interesting to see how BALCA would decidethe case.
    One could argue to BALCA that the answer "Yes" was really harmless error, or no error at all, since the unidentified foreign language in H-13 was never implemented in the PERM application.
    The error could also be traced to the DOL, not the Employer, by arguing that the PERM form should prompt the Employer to state in a separate question, immediately following H-13, which language isrequired! Since the form does not require this to be stated, it seems that Employer made no genuine error by providing a partial response, and the application should have been approved, not denied. There was no prejudice to any US workers, and on the face of the application, there is no foreign language requirement at all!
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