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The DOL has issued a series of decisions explaining what happens when the national PERM office asserts it sent an audit letter that the employer says it never received.
In the US, since mail is reliable, there is usually a presumption that a letter mailed in the normal course of business was properly received by the addressee. The presumption of delivery, however, depends on proof provided by the sender that the letter was actually mailed. Disagreements about delivery abound.
In a string of administrative court cases on the subject, the Board of Alien Labor Certification Appeals has held in favor of employers, but only when two conditions are met. First, the employer has to assert, under oath, that it did not receive the audit letter. Second, the DOL has to provide documentation of its internal mailing process to “prove” that it sent the letter.
In the computer age, glitches have added to the likelihood that letters may not have actually been sent, even though the sender sincerely believes it took all the normal steps.
Printer malfunctions are often to blame, as when audit letters addressed to two different employers are accidentally inserted in the same mailing envelope. It is not uncommon for an employer or attorney to receive an audit letter that should have been sent to another person.
The most recent case decided by the Board is Jerhel Plastics, Inc., issued on July 26, 2016, and cited as 2016-PER-019. In its analysis, the administrative law judges noted that when audit letters are sent by certified mail, there is a strong presumption that they were probably received.
However, since the Department of Labor does not normally use certified mail, the Board upholds the employer when the Employer attests it has not received the letter, and the DOL has no real proof that the letter was actually sent.
In Jerhel, the employer had checked the on-line status of the application, which consistently showed that the PERM application was under review and, therefore, that an audit letter had not been issued. The court also believed that the Employer had no apparent motive to lie about not having received the audit letter.
Proving a negative is always a difficult task. In view of the difficulty in proving that an audit letter has not been received, employers should check PERM case status frequently at the Department of Labor's on-line iCERT portal (the same used to file the PERM application) and save on-line reports as proof in case of future disputes.
The US Department of Labor holds Stakeholder meetings 3-4 times per year to discuss technical issues with employers, bar associations, student advisors, unions, government agencies, and other interested groups.
At a recent meeting, questions were raised about prevailing wage determinations for job offers involving combinations of occupations. DOL always raises the prevailing wage level if a position requires the worker to perform sets of duties that are found in more than one occupation
Stakeholders explain that when a combination of job duties appears in a PERM application, and the wages for each of the jobs is different, DOL should look at the percentage of time spent in the job duties of each occupation, and if a larger percentage of time is spent in one (and a lesser percentage in the other), the correct wage is the one for the job in which the employee will spend the most time working. Currently, DOL automatically defaults to the higher wage, regardless of the percentage of time.
Reconsideration of prevailing wage determinations is also very muddled. DOL has a three step procedure:
First, DOL does not include uploads with extensive documentation in its initial determination because of time constraints, but if the determination seems unreasonable, employers can provide supplemental documentation to the officer.
Second, the employer can escalate the issue to the director of the National Processing Center to reconsider the determination. If this type of review does not produce a lower wage, the Center will at least provide a detailed explanation about the methodology used in the wage determination.
The third option is an appeal to the Board of Alien Labor Certification Appeals. The Board consists of administrative law judges who review the matter from a broad, legal perspective, but employers must expect considerable delays due to BALCA’s heavy caseload.
One stakeholder asked if employers could simply file new prevailing wage requests rather than pursue three kinds of review and reconsideration. The employer is always free to do that -- however, there is a rule that if two prevailing wage requests are submitted for the same job offer, the higher of the two wages has to be used!
An interesting point made by DOL is that as very few prevailing wage determinations are appealed through any of the three steps, and, as a result, DOL does not have sufficient feedback to identify policies or procedures that need to be changed.
Everyone agrees that high tech workers are usually on the go, but how often, how long, and how far are open-ended questions that depend on the job.
The PERM Rule requires that travel requirements be included in newspaper ads, but DOL has never provided guidance about advertising for different kinds of travel. Much has been left to speculation and conjecture, especially the difference between travel and relocation.For decades, the usual language used to designate travel requirements for roaming IT workers has been the phrase “travel to various unanticipated locations,” but starting a few years ago, DOL began to argue that travel and relocation should be written separately in newspaper ads -- because “relocation implies a physical move to a new area or location to conduct the work or assignment and is a one-time, expensive event that is more permanent and excessive than travel for short and long term projects.”
Employers reacted by complaining that this definition of relocation was vague and that a sudden distinction between travel and relocation breaks with the long-standing tradition to lump all kinds of assignments together under the aegis of travel.
In a recent case involving a large IT company (Infosys, Ltd., 2016-PER-0074 (May 12, 2016), the Board of Alien Labor Certification Appeals was asked to determine whether the employer should have stated the word “relocation” in its ads. After much controversy, the Board issued its decision, refusing to uphold DOL’s denial of PERM applications for positions involving relocation, when the word “travel” alone had been used in its ads, even though the travel might require residing in unspecified locations for extended periods of time. Having discussed and analyzed the conflicting points of view, BALCA agreed with the employer that, lacking any clear guidance from DOL to the contrary, travel and relocation must be considered to be essentially the same thing.
Although employers may consider this to be a victory, the ruling is limited to this specific case because it was decided by only three judges and not by the entire court en banc. DOL is at liberty to continue to elaborate distinctions between travel and relocation and to challenge employers in future cases.
This is good enough reason why employers should still consider providing as much detail as possible about travel requirements in their ads, including assignments to travel or relocate, geographic destinations if known, and compensation for long term relocation expenses.
A controversy has been brewing at the Department of Labor over the exact wording for online Program Electronic Review Management (PERM) newspaper ads.The PERM rule, which was implemented in 2005, contains detailed instructions for what must be included in a newspaper ad, namely: (1)l the employer's name; (2) the geographical place of employment (this does not have to include the street address);(3) a job description; and (4) instructions for contacting the employer (eg, a PO box number, fax number or other identifier).The PERM rule further states that newspaper ads cannot contain: (1) a wage rate that is lower than the prevailing wage rate; (2) job requirements or duties that exceed those listed on ETA Form 9089; and (3) wages or employment terms and conditions that are less favourable than those offered to US workers.
In addition to newspaper ads, occupations that are deemed to be professional require three additional recruitment steps that may be chosen by the employer from a list of 10 options. When the Department of Labor planned the recruitment instructions for the PERM process, it deliberately left out any rule pertaining to the text of professional occupation ads, enabling employers to elaborate them as they see fit.
The recruitment process for professional occupations is diverse and includes advertising via websites, the radio and television, college campuses and placement offices, employee referral programs, ethnic and local newspapers, private employment agencies, job fairs and trade and professional journals.Free to determine what to include in professional ads, most employers have played it safe by following the rules for newspaper ads.
Ads should always include the employer's name, the place of employment, the job description and instructions for contacting the employer to send a curriculum vitae. However, employers do not always realise that while some information may be omitted, it may not violate the law if included. These would be ads offering a wage rate that is lower than the prevailing rate, excessive requirementsor duties or employment terms and conditions offered to the foreign worker that are less favorable than those offered to US workers.
When employers publish optional information in the ads, needless errors may occur and result in denial. Online ads In recent years the Board of Alien Labor Certification Appeals has recognised that in practice, the content of professional ads may not always reflect what is required for newspaper ads. In a number of cases dating back to 2011, the board has granted approvals to employers that did not include their address on the same web page as their online ad. The address appeared elsewhere on the website, but was easy to find.
In April 2016 the Board of Alien Labour Certification Appeals considered Matter of VLS ITConsulting, Inc (2012-PER-1769). In this case, the employer's website had included all of theinformation required to notify workers of the job opportunity. However, because the web page that contained the ad did not bear the employer's name, the certifying officer issued a denial. The employer responded that the website showed the employer's name on a different page, and that job applicants could easily navigate the site to find all of the required information. The board then granted approval to the employer.
In addition, the en banc decision in Symantec Corp (2011-PER-1856, July 30 2014) held that the requirements for newspaper ads do not apply to professional recruitment steps.Despite the apparent liberalisation of the professional recruitment rule, employers should always consider using the requirements for newspaper ads detailed in 20 Code of Federal Regulations 656.17(f)(4). Otherwise, it might be necessary to appeal the case to obtain an approval – a process that can take several years.
Once again a BALCA panel has held that foreign workers cannot use education gained on the job to meet the minimum requirements of a PERM job offer. The overall rationale is that if the foreign worker did not have the necessary educational qualifications before beginning to work for the employer, it would be unfair to require that of U.S. workers. See Inteliops, Inc., 2012-PER-1099 (March 25, 2016).
To understand how the subtleties of this rule work, employers should review 20 CFR sections 656.17(i)(1)-(5).
In 656.17(i)(1), the rule states that job requirements must represent the employer's actual minimum requirements for the job opportunity. Employers cannot "treat the alien more favorably than it would a U.S. worker" by adding more stringent qualifications for U.S. job applicants.
In 656.17(i)(2)), the rule warns that employers "must not have hired workers with less training or experience for jobs substantially comparable to that involved in the job opportunity." Note that this rule only applies to jobs that are substantially comparable and that the word education is not included together with experience and training.
In 656.17(ii)(3), the rule continues, "If the alien beneficiary already is employed by the employer, in considering whether the job requirements represent the employer's actual minimums, DOL will review the training and experience possessed by the alien beneficiary at the time of hiring by the employer, including as a contract employee." The word "education" is also omitted in this section.
In 656.17(i)(4), a different situation is presented, "In evaluating whether the alien beneficiary satisfies the employer's actual minimum requirements, DOL will not consider any education or training obtained by the alien beneficiary at the employer's expense unless the employer offers similar training to domestic worker applicants." Here the Rule appears to recognize education gained on the job, as long as the same opportunity was offered to U.S. workers and, if payment for education was provided, it should have been offered to all workers, not just to the foreign worker. A literal reading of this section allows that employers are permitted to use education gained on the job because, while the rule includes experience and training, it excludes education.
In Section 656.17(i)(5), the rule explains that two positions are considered to be substantially similar if they require performance of the same job duties "more than 50 percent of the time." Employers may distinguish between two jobs and show that they are not substantially similar by using a spread sheet to compare the job duties, percentage of time spent in each, and other factors such as supervisory duties.
In a number of BALCA decisions, the issue of on-the-job education has become muddled, because if the PERM job offer is for the same position for which the alien qualified when first hired, the minimum requirements could not include after-acquired education without discriminating against US workers who were not given the same opportunity. This would be a violation of the above sections 656.17(i)(1)-(3).
A different situation is presented, if the alien is promoted by the employer to a different position with a new set of requirements, including education gained on the job. This fact pattern occurs when recent college graduates gain work experience in practical training or H1-B status, or where foreign workers accept an entry level position and then want to bump up to 2nd preference after earning a master's degree or a bachelor's plus five years of progressive experience.
While the PERM rule contain contradictions relating to education gained on the job, BALCA has held that the "actual minimum requirement rule" trumps the "gained education on the job rule" and prohibits the use of educational qualifications gained on the job to qualify for a new job.
There is an exception, however, for job offers that are not substantially similar to the job currently held by the alien, or where infeasibility to train may be shown. In these cases, DOL policy would allow education gained on the job to be used as a minimum requirement for PERM.
Updated 04-15-2016 at 12:16 AM by JStewart