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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!
In a recent case, the Board of Alien Labor Certification Appeals considered issues of form vs. substance, applying the concept of Fundamental Fairness (aka Due Process) to some highly technical issues. The case, "Steve's Bakery and Cuchirfrito Corp, 2010-PER-844, was decided on March 9, 2011.
In the first instance, an Employer responded to a denial of certification using the title "Request to Review." As such, the CO forwarded the file to BALCA for appeal.
The Employer, who had wanted reconsideration by the CO, and not an appeal to BALCA, wrote a letter to the Board requesting and clarifying that it was seeking reconsideration. The CO argued that that had the Employer entitled its response to denial "request for reconsideration" and "request for review," the case would have been reconsidered, or if the Employer had written nothing, the case would have been reconsidered, but since the Employer wrote, "request to review," the case was sent to BALCA for review, without the intervening process of reconsideration by the CO.
Confronted with these terms of art, the Board considered how and when Motions reqiests fpr reconsideration may be treated as Requests for Reconsideration or Review.
The Board noted that the CO has the discretion to refuse to reconsider an application "sub silentio" by simply passing it on to the Board silently and without comment. This is authorized by the regulations, 20 CFR 656.24(b)(4), which state that when a motion for reconsideration is filed with the CO, he/she has the discretion to either reconsider the denial determination or treat the employer's request as a request for review by the Board of Alien Labor Certification Appeals.
In some instances, a reconsideration is appropriate, instead of an appeal to the Board, where the employer needs to develop a factual record upon which the denial was denied, but, the Board stated that it held that a CO will not be found to have precluded an employer from developing the necessary factual record where the regulations would not have permitted the employer to supplement the record (referencing the regulation describing what documentation can be used to support a motion for reconsideration). This was discussed in a previous BALCA case, In the matter of Denzil Gunnels, 2010-PER-628 (November 16, 2010).
Reasoning along these lines In the instance case, the Board was reviewing the issue of a response missing from Section M-1. This question on Form 9089 asks whether the application was completed by the Employer? The answer required is "Yes" or "No," but here the answer was left blank. Since the application was sent in by mail, the computerized system did not alert the Employer about the missing answer. The issue presented is whether the missing response could be amended after the fact. The law, 20 CFR Sec. 656.11(b), provides that "requests for modifications to an application will not be accepted for applications submitted after July 16, 2007."
First, the Board ruled that the CO did not abuse his discretion for treating the Employer's "request to review" as a request for appeal to BALCA, and not as a request for reconsideration.
Secondly, the Board found that the failure to check Question M-1 on the Form 9089 could not be material, since the attorney had completed the remainder of Section "M" and had signed under penalty of perjury that he had prepared the application. The Board found that there was a difference between filling out Section M-1 on line, since the certification is not signed and dated until after a certification is granted. But the Board reasoned that where the application was filed by mail, and signed and dated by the parties, " it is not clear what purpose Section M-1 serves."
The Board decided it would not rule that the response to M-1 is not material, but would remand to the Certifying Officer to determine whether it was material or not.
The Board's holding stated, "In remanding this case for reconsideration, we wish to emphasize that we have not made a finding whether failure to make a selection in Section M-1 is or is not material under the circumstances of this case. Rather, the point is that it does not appear to be a material reconsideration, and without an explanation from the CO as to why it is a material consideration, we decline to affirm the denial. Neither are we prepared to reverse the denial beacuse the record is silent as to the import of Section M-1 for a mailed in application. Remand is an opportunity for the CO to consider the issue and either find that it was not a material omission, or to provide an explanatino as to why it was important to the CO's review of the application."
The interesting fact in this case is that the determination of materiality is akin to a determination of harmless error, which has been officially rejected by the DOL, but, which nevertheless continues to live on under the concept of Fundamental Fairness.
Supervised recruitment authorizes the Certifying Officer to require Employers to make an additional search for US workers in the job market.
Prior to the introduction of the PERM Rule on March 28, 2005, Employers were required to advertise job opportunities for three consecutive days in a newspaper of general circulation and 30 days in the job bank of the state workforce agency. if it were deemed more appropriate due to the professional or technical nature of the job, a one-time ad in a professional journal was recommended instead of three consecutive days of newspaper ads. Sometimes even though the Employer dutifully advertised 3 days in a newspaper instead of a journal upon the advice or instruction of the SWA, but the CO would nevertheless require an additional advertisement in a professional or technical ad to obtain a better search of the job market. This additional requirement was based on the assumption that the ad in the newspaper was inappropriate and should have been advertised in a journal.
Extra recruitment in addition to the recruitment required by the regulations was always welcome and permitted, but not required. The ETA 750-A Form asked the Employer to disclose such recruitment, if it had occurred prior to filing the labor certification.
As mentioned above, the pre-PERM norm was to advertise 3 consecutive days in the newspaper, and 30 days in the State Job Service. The choice of 3 newspaper insertions, or one journal, was sometimes open to interpretation. Often the Wall Street Journal would be used, especially for jobs offered on a national or regional basis (usually requiring travel or working in more than one office), but it was usually considered to be a journal, not a newspaper, due to its targeted market, broad circulation and high expense. Consequently one day in the Wall Street Journal would suffice as a journal ad.
The Notice of Posting (now called the Notice of Filing) required to be posted for 10 days on the Employer's bulletin board has been, strictly speaking, not an advertisement, because it's main purpose is to keep the whole process transparent by advising local employees and interested persons that the job is available.
Under the PERM Rule, recruitment was expanded, for professional positions to require three additional forms of recruitment to be chosen from a wide range of 10 generic types of recruitment, if the occupation was deemed to be a profession.
The PERM rule authorizes extra recruitment in the form of supervised recruitment. The CO may request an employer to engage in extra, supervised recruitment, following the employer's normal recruitment efforts, even if those efforts are totally compliant with the PERM Rule. This in itself is not objectionable, not only because it is the law, but because there may be occupations, geographical areas, or other cases where additional recruitment should be required.
Nevertheless, the current implementation of supervised recruitment appears to be ultra vires and improperly applied, if the CO issues these extra requirements without regard to any legally established guidelines in labor certification practice.
Under orders of supervised recruitment, employers and attorneys now report that the CO has issued detailed recruitment instructions without regard to the regulatory standards of any rule, whether pre-PERM, current PERM, or existing BALCA decisions. At the AILA Conference in June-July of 2010, the panel reported that the CO had requested up to 6 days of advertising in the Wall Street Journal as well as other expensive forms of advertising far in excess of procedures normal in the industry or previously authorized by law.
It is also reported that under Supervised Recruitment the CO's have also been requiring that the ads include the entire job description and list of requirements be written verbatim in the ads. This is contrary to the PERM Rule which specifies that the ad need only give job seekers a clear idea of what the job is and need not include every detail that would normally be on Form 9089 and that the Employer need not put the job requirements in the ads. It is often thought that a generalized ad, with fewer words and without a statement of requirements is more favorable to US workers, not prejudicial, as it tends to widen the pool of US workers who will apply for the job. The DOL has stated this in their FAQ's.
The immigration bar reports that Supervised Recruitment letters have only a 30 day period to respond. Typically, the Employer may receive a letter advising that supervised recruitment will be required, but oftentimes the letter comes after one week or more from the date the letter was written. The Employer may then be required to provide detailed recruitment information, proposed copy of ads and recruitment, which must be received by the CO within 30 days. Then again, after the recruitment, the Employer may be required to respond with the recruitment report within 30 days of the request for recruitment from the CO.
Under pre-PERM, the parties were allowed 45 days to respond to the State Workforce Agencies with recruitment information, and extensions were permitted for good cause as a matter of Due Process. Practitioners report they have been successful in getting ad hoc extensions, not as a matter of right, but by entering into an uncertain and time-consuming process.
Experience under pre-PERM with extensions was that Employers had to request extensions and obtain confirmation of the request for extension and that Employers had to submit their requests early on during the recruitment period, not at the last minute. BALCA upheld the Employers' right to request extensions based on Due Process, notwithstanding statements from the SWA's or the CO's that no extensions would be available.
Under PERM, it is contemplated that the preparation of a PERM case, prior to filing, might take more than 60 and up to 180 days. PERM recruitment is more extensive than pre-PERM, since there may be three additional recruitment steps for professional positions, and there is a 30 day waiting period at the end of the process. The Employer also has to take into consideration the validity period of the Prevailing Wage Determination.
The imposition of unusual recruitment requirements and a strict 30 day deadline for substantive responses are onerous requirements not contemplated in the regulations and not justified by established, existing standards found in the pre-PERM or PERM regulations, nor in any BALCA decisions. BALCA itself has stated that the FAQ's do not have the force of regulations and may not make substantive changes in administrative practice. The abrupt, unexplained and unpublished departure from established requirements for extra recruitment, issued by FAQ's, letters commencing, E-Mails and phone calls is ultra vires, arbitrary, contrary to law, and therefore an abuse of discretion.
The agency does not have the discretion to create substantive, non-interpretive rules, in this manner, which go far beyond the deference to discretion for federal agencies contemplated in Chevron.
William Stock, Esq., participated in a panel at the mid-winter AILA Conference which took place in Miami on February 17 and 18. Bill chaired a panel on PERM Updates, but I wish to focus on the article he presented in the Conference Materials regarding Business Necessity.
Bill's article emphasizes the importance of a well written and detailed narrative to document business necessity in the PERM File. This is a point well-taken and is, indeed, the best way to present business necessity documentation.
The DOL relies essentially on the business necessity standard announced in Matter of Information Industries, 88-INA-82 (1989) BALCA (en banc). This, of course, is a well-known two-prong test, where the Employer must document business necessity by proving the first prong, that the employer's requirements are essential to perform the job duties and the second prong, that the requirements are normal.
Although the concept is simple, the execution is more difficult. As Bill aptly notes, the best way to go about this is to prepare a detailed narrative to be signed by a responsible person such as the Employer or HR Manager, under oath, with data and details that only the Employer can cite. This type of affidavit is very effective to prove business necessity, however, it is highly labor intensive and requires a great deal of work by persons who are skilled in writing the English language -- like English majors and others who have mastered the art of effective writing. In fact, I recall the words of a successful practitioner who said that in his law office he hires people with excellent communication skills.
However, the business necessity statement should also be accompanied by objective data and documentation to bolster and corroborate the statement of the Employer. It is wise to note that in doubtful cases, the opinion of an expert can also be attached to the affidavit.
It follows then that the best prepared business necessity statement, will be based on a detailed narrative-style affidavit, signed under penalty of perjury, and accompanied by pertinent documentation and the opinion of an expert.
Implicit in this argument is that the business necessity statement must be presented to DOL for consideration, but the only way this can be done is if the application for certification is audited. The business necessity statement becomes part of the record file which must then be transmitted to the Certifying Officer for consideration.
In one BALCA case, the Certifying Officer did not accept the business necessity documentation and forwarded it to the Board, however, the Board approved noting that the Employer's affidavit swayed contained information that is not on the PERM Form 9089. This is a basic peculiarity with PERM -- that the Employer's only opportunity to get anything in the record may not be on the form itself, but in the supporting documentation in the record file. Some practitioners advise putting as much information about business necessity on the form in any of the available spaces in Part H, such as the job descrition itself, the statement of special requirements, or even in the statement of the alien's qualification, Part J & K.
The point of all of this is that where business necessity is the issue, the manner of presentation must be credible, probative, convincing, and easy to read. As it has been said many times, "The Devil is in the details," and in a PERM case a detailed presentation of the business necessity statement will help win the case.
Employers and attorneys should also review the PERM regulations so as to understand the standards that must be proved throughout the process. Matter of Information Industries only applies to the employer's job requirements if not deemed normal in the United States.
Entirely different standards apply to combination of job duties, language requirements, qualifications gained on the job, live-in requirements, and actual minimum requirements, all of which have specific formulas in the PERM Rule that explain how to document that that they do not violate the regulations.
The PERM Rule established new regulations for Employer's to follow, as of May 28, 2005, however, pre-existing BALCA decisions, may also be considered valid, unless they conflict with the PERM Rule itself.
While BALCA decisions are not truly precedent decisions, they may be used as interpretive guidance to prepare PERM applications and to respond to audits or negative findings.
I was listening to a tape from the DOL presentation to the national AILA Conference from 2010, and I began to sympathize with the difficulty the certifying officer may experience to make certain kinds of findings.
For example, on the issue of identifying the equivalence of a Bachelor's Degree, the speaker stated that DOL has received PERM applications with a wide gamut of equivalencies. Employers have filled the alternate requirement (experience) box with one year, two years, three years, four years, etc., up to 12 years. Employers also sometimes stipulate a Bachelor's Degree equivalence to be a high school diploma, two years of post-secondary education, an AA diploma, a Master's Degree, or even a Ph.D.
They can't all be equivalent, can they?
Quantitatively speaking, a Bachelor's Degree could be equivalent to two years work experience or an Associate's Degree, or two years of post secondary education, or two years of training, if you apply the SVP test to determine equivalent preparation time.
Equivalency can also be described in a qualitative, not quantitative manner. By borrowing on the H-1B model, an Employer might find that a Bachelor's Degree is equivalent to more than two years work experience, for example, 12 years of progressive experience. However, the H-1B standard is not applied by DOL.
In other situations, a program of training, study, or internship, could be defined in an anomalous way to be equivalent to a Bachelor's Degree, like a 3 year nursing program, or a six-year work study program.
It is clear that there is no bright line test to determine equivalencies. The DOL claims that they try to use a common sense approach, so when a colleague submitted a question to me this week about a failed request for Prevailing Wage, I decided to use a common sense approach to see how it would work.
The Employer received the following comment from DOL:
"The deficiencies are: This 9141 was submitted on the behalf of the Requestor care of the iCERT portal. The 9141 yielded the omitted mandatory, incorrect or vague information. The 9141 will move forward as an RFI. The deficiencies are: Alternative Edu & Exp requirements are currently listed. Per Section D.B.1 (Minimum Job Req's) education is populated as BA. Section D.b.1a (if "Other Degree" in Q1...) is populated as MA. Section D.b.5 (Special Req's) is populated as BA/8 years of exp or MA/3 year's exp. Please respond with one set of education and exp requirements."
To translate this PERM-speak into plain English, it appears that the Employer (through its attorney) submitted multiple incongruous requirements such as (1) a Bachelor's Degree, (2) a Master's Degree, (3) a Bachelor's Degree plus 8 years of experience, or (4) a Master's Degree plus 3 years experience.
Now apply common sense: the Employer probably wanted to state that it required a Master's Degree (to enable the applicant to apply for 2nd Preference), but since the alien did not have a Master's Degree, the employer included the requirement of a Bachelor's Degree as an alternative.
Then the Employer went on to add an experience component. Hence the result: a Bachelor's Degree plus 8 years experience or a Master's Degree plus 3 years experience.
At first glance the requirements seem impermissible, because a Bachelor's Degree plus 8 years experience is 10 years SVP, and a Master's Degree plus 3 years experience is 5 years SVP.
However, using the common sense approach, you subtract the employer's requirement of 3 years experience from the employer's requirement of 8 years experience. This difference is 5 years experience, which happens to equal the amount of experience that can be added to a Bachelor's Degree to obtain the equivalence for second preference.
One may then conclude that the Employer inadvertently added 5 plus 3 to obtain 8.
Now apply the Kellogg rule (permissible equivalence test). The Employer would stipulate a Master's plus 3 or alternatively a Bachelor's plus five, a harmonious combination when following the SVP equivalence rule. However, employers may also generally require a Master's or Bachelor's plus five, if following the qualitative equivalence rule.
Don't forget the finishing touch is to put the Kellogg magic language on Form 9089 in Box H-14: "Employer will accept any suitable combination of education, training or experience,"