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Joel Stewart on PERM Labor Certification

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  1. 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."
  2. 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!
  3. 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.

     
     


     

     
  4. 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!
  5. BALCA: Elevating Form Over Substance

    by , 03-21-2011 at 10:49 AM (Joel Stewart on PERM Labor Certification)
    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.
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