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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
It is commonly known that H-1B temporary workers can port to new employment, even while a new H-1B petition is pending approval. Each porting event requires a new petition, and each petition requires de novo approval. The only credit given for porting is the ability to work in the new position while waiting for official approval from USCIS.
According to a March 16 Policy Memorandum from CIS, section 204j of the INA allows employment-based applicants seeking permanent residency status to port to new employment with a the same or new employer, when they are in the adjustment of status (AOS) for 180 days or more – provided that the new job is the same or similar. Qualified applicants with underlying PERM cases can port as often as they want and extend their stay as long as necessary, even if their priority dates retrogress.
After years of uncertainty around what qualifies as the 'same' or 'similar,' US Citizenship and Immigration Services (USCIS) has issued a memo that provides definitions and interpretive guidance.
Because the terms 'same' or 'similar' are not defined in the Immigration and Nationality Act, the CIS Regulations, or the PERM Rule, CIS has employed dictionary definitions. 'Same' means "identical" or "resembling in every relevant respect", and 'similar' means sharing "essential qualities" or a "marked resemblance or likeness".
Further meaning of these terms can be found in the Standard Occupational Classifications on the O*Net – a government databank that organises all occupations in the United States into 23 major groups, 97 minor groups, 461 broad occupations and 840 detailed descriptions.
Information technology positions
Of interest to the information technology (IT) community is the fact that many IT positions meet the same or similar test for porting because they belong to one major group: Computer and Mathematical Occupations (15-0000).
The Department of Labour gives several examples of occupations in this group that meet the same or similar test:
Computer Programmer (15-1131);Software Developer, Applications (15-1132);Software Developer, Systems Software (15-1153); andWeb Developer (15-1154).
Jobs with same classification code not automatically the same or similar
Jobs with the same broad classification code are not automatically considered to be the same or similar. Differences may prevent favorable classification when the duties of the jobs are dissimilar (eg, if one is primarily technical and the other is primarily supervisory). Other distinctions – such as normal career progression, increased responsibility, salary changes and special skill levels – may be permitted.
Jobs with different classification codes can be the same or similar
Conversely, jobs that have different broad classification codes can be the same or similar when the job duties are similar, or when differences in classification depend on the size or nature of the employer. For example, the Department of Labour has stated that Computer and Mathematical Occupations (15-0000) can provide possible matches for jobs in Architecture and Engineering Occupations (17-0000).
Approval of AOS
Another important requirement for porting is that an AOS application cannot be approved if the underlying I-140 petition has been denied, which can lead to unexpected problems. The memo states that it is unlikely that an employer would continue to pursue the approval of an I-140 petition for a worker who ported to work elsewhere before it was approved.
Workers whose I-140 petitions have already been approved should be prepared to prove the validity of the new job, including the legal status of the new employer, the existence of a genuine job offer and the ability of the new employer to pay the wages.
No reporting requirement
Employers who sponsor workers for H-1B visas must report that workers have ported or departed from the country. However, the reporting rule does not extend to PERM and other employment based AOS applicants on whose behalf an I-140 immigrant petition has been filed.
While some workers may choose to report their new employment to USCIS voluntarily, others may simply keep the documentation as proof that they ported in accordance with the laws and policy guidelines.
Decisions by officers should be based on the preponderance of the evidence and the totality of circumstances.
The memo support career progression, including upgrades in job duties and supervisory duties, as well as situations when an individual moves from a non-managerial and non-supervisory position into a managerial or supervisory role. "If evidence provided by applicants establishes that, in their new positions, they are primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, ISOs may treat such evidence favorably in determining whether the two jobs are in similar occupational classifications.
The memo states, "...a difference in salaries alone would not preclude an ISO from finding that two positions are similar. Allowances should be made for normal raises that occur through the passage of time to account for inflation or promotion. There can also be an allowance for a difference in pay25 if such difference is related to varying rates of pay in different economic sectors or geographic locations, or is the result of other factors such as corporate mergers, size of employer, or differences in compensation structure. Additionally, there could be differences in wages in cases involving moves from for-profit employers to nonprofit employers, academic institutions, or public employers (or vice versa). USCIS will be able to perform its adjudicatory function most effectively if an applicant explains in detail any substantial discrepancy in wages between the original position and the new position. In all instances a difference in wages and any explanation for that difference shall be reviewed along with all other evidence presented."
Adjudicator's Field Manual
The Policy Memorandum has been incorporated into the AFM along with a disclaimer: "This PM is intended solely for the training and guidance of USCIS personnel in performing their duties relative to the adjudication of applications and petitions. It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner."
Updated 03-20-2016 at 11:02 AM by JStewart
In a recent decision by administrative law judges, Accent-Media Productions, Inc., 2012-PER-712 (September 23, 2015), an application for Computer Programmer was denied because the Employer did not provide the Department of Labor with copies of emails it had sent to job applicants. The DOL had audited the application and included a request for evidence about contact with job applicants. In response, the Employer provided a recruitment report with the names of 17 referrals but only provided copies of email correspondence it had conducted with 8 of the 17 applicants.
The DOL denied the PERM application, because the Employer failed to provide the missing e-mails to prove it had contacted all the US workers. The judges relied on a PERM regulation which states, “A substantial failure by the employer to provide required documentation will result in that application being denied.” 20 CFR 656.20(h).
The Employer filed a request for reconsideration in which it argued that it need only provide copies of applications for labor certification and supporting documentation that it retained under Section 20 CFR 656.10(f) and an original signed ETA 909 if the PERM application was filed by mail under 656.17(a)(1), and that emails and other communications are not among the supporting items required by the regulation.
But in another part of the regulations, it states that the CO may ask for additional types of documentation if the request is reasonable and if the omission of same is sufficient to constitute a “substantial failure…to provide required documentation.” The judges used the “substantial failure” argument to uphold denial of the application. The judges then held that the DOL’s request for emails met both the first prong of the test, that the emails were readily available to the employer, and the second prong of the test, that the documents were material, because they were needed to determine whether the remaining 9 US workers had been rejected for lawful, job-related reasons.
After the denial, the Employer tried to submit the missing emails by means of a request for reconsideration but ran afoul 20 CFR 656.20(3), a regulation which was added to the PERM Rule on July 16, 2007. It states that the only documentation that employers may provide in a Request for Reconsideration is documentation that the Certifying Officer himself had requested or documentation that the employer did not have an opportunity to present previously but that existed at the time the PERM application was filed and retained in the PERM Record File.
Put into plain language, after an audit an Employer may not overcome the defect of missing or important documentation by entering it into the DOL file as part of a request for reconsideration unless the Certifying Officer requests it. Since the CO did not ask for the missing information, the Employer had no right to submit it after the audit in the form of a Request for Reconsideration and the denial was upheld.
The PERM Record File includes the perm application and supporting documents that the employer must maintain for five years and is different from the the DOL's authority to request information at any time if the request is reasonable and the documents are material. There is actually no time limit for the DOL to request information, and there is another regulation that allows the DOL to invalidate a PERM approval at any time in the future “if the Certifying Officer finds the certification was not justified.” 20 CFR 656.32.
To summarize how the Information Time Line works:
DOL notifies the Employer of an Audit with a request for specific documentation.The scope of documentation that the DOL can request in the audit is not limited to the PERM application and supporting documents (which must be retained for five years) but may also include a request for any other information.In response to the audit, Employer may respond by filing the documentation requested by DOL and proffer any other documentation or information it wishes to provide.Failure to submit information that is reasonably available and material is cause for denial if the omission of the information is a “substantial failure.” If DOL denies for failure to provide information, the Employer may not file the requested information in the form of post-denial Request for Reconsideration because only the DOL can request the Employer to provide information after the completion of the audit.
While the decision in this case turns on the employer’s efforts to submit material documentation after the audit by means of a Request for Reconsideration, appeals to BALCA (Requests for Review) also do not permit the introduction of new documentation or new legal arguments that have not previously been provided in response to an audit or other specific request for information made by the Certifying Officer prior to final determination.
This restriction on the ability to supplement the record is generally unfamiliar to immigration stakeholders who practice under the regulations of the Department of Homeland Security and other agencies that normally permit petitioners to introduce new evidence and arguments at different stages of petition and visa processing. Aggrieved PERM applicants can challenge the legality of DOL regulations in federal court, but not before the administrative law judges.
Updated 09-29-2015 at 08:00 AM by JStewart
A peculiarity of the alien labor certification program (known as PERM) is that the US Department of Labor has a policy of Zero Tolerance towards scrivener errors. No inaccuracies of any kind are permitted, and when errors do occur, no amendments may be made after the filing date – not even innocent typographical errors on the PERM forms can be corrected.
Soon after the new program began in March 2005, the Department of Labor denied a PERM application that contained a very simple error. An Employer had advertised a job opening in two Sunday newspapers (as required by law), but on the PERM form the Employer confused the publication dates and wrote them eight days apart instead of seven.
The alien labor certification program uses the acronym PERM for “Program Electronic Record Management.” The idea came out of a reengineering effort to reduce processing times for alien employment certification. Under PERM, employers could file applications electronically to be scanned by computers and not by human eyes.
Applications adhering to the PERM regulations (i.e., advertisements placed on the proper days and dates, strictly enforced processing times, notices of job opportunity properly posted, media and other recruitment conducted according to the regulations, and records maintained for possible audits) could be rewarded by prompt agency determinations, hopefully approvals, within a few days of filing.
However, the Department of Labor only approves perfect applications that have no electronically discernible errors, and any error of any kind results in a denial. It is important to note that there are essentially two kinds of errors: those that are substantive and affect the legal requirements and bona fides of the job search and clerical errors that do not relate back to the essential legal requirements but are merely typographical errors or omissions. Among jurists, the latter errors may be called “harmless” or “de minimis.”
Prior to the PERM Rule, harmless errors could be corrected by employer correspondence with the Department of Labor. This has the advantage of saving or preserving an application, but since the PERM Rule relies on electronic review of the forms, DOL computers do not easily distinguish between harmless errors and more serious errors that may invalidate the application.
An example of a significant error would be the failure of the employer to place two Sunday newspaper advertisements not on Sundays, but to mistakenly place them on a Sunday and a Monday, while an example of a harmless error would be the placement of two newspaper advertisements on two Sundays, but mistakenly indicating on the form that one was placed on a Sunday date and the other on a Monday.
There was a famous case called “HealthAmerica,” wherein the employer advertised a job opportunity in two Sunday newspapers as required, but typed the second publication date incorrectly with an eight-day interval between the two dates... The error on the form was harmless because the advertisements had been published on two Sundays.
The administrative law judges of the US Department of Labor chastised the government for denying the application, but despite the legal controversy of the moment, the issue of zero tolerance of harmless errors continues ten years after the introduction of the PERM Rule, and typographical errors, no matter how innocent and trivial, still serve as the bases of denials.
While many typos are, indeed, the employer’s fault, due to careless proofreading, some errors occur because of glitches in the DOL electronic on-line application program. When this happens, Employers may sometimes win approvals by filing requests for reconsideration of denial that point out the error was due to an electronic malfunction and not to human failure.
Another area of difficulty is that the instructions provided by the Department of Labor are sometimes confusing or even contradictory. There are several different types of instructions that Employers need to follow.
Some instructions are printed on the PERM form near the boxes provided for data input. Other instructions are published separately on the DOL website. Even the electronic on-line system has its own full set of instructions that attempt to explain how to work with pull-down menus, use of addenda when there is lack of space available for data input, and other purely electronic problems.
With all this, the most common errors result from ambiguous questions and inconsistencies in the process.
One was the need to include the phrase, “Employer will accept any suitable combination of education, training or experience,” commonly known as the “magic language.” Only after many denials were issued, the DOL finally gave guidance in the form of FAQ’s which explain that the language can be placed anywhere on the form, for example, in H-14 “Special Requirements.”
Another occurred when DOL routinely denied applications that did not include information about the foreign workers’ acquisition of licenses required to perform the job duties, even though there was and still is no official place on the form to place the information. The DOL has now clarified that these skills can be included in the summary of alien experience in Part K of form 9089.
The entire PERM Rule has been replete with complex deficiencies, although many of them have been resolved by the issuance of FAQ’s. These may include audit requests which are not specific or clearly stated; difficulty in locating important information to place on the forms, lack of detailed and specific instructions for advertisements in electronic journals and websites, uncertainty about the selection of newspapers of general circulation in which to place ads; criteria relating to selection of job search websites; procedures for use of employee referral programs; standards for minimum and alternate minimum requirements to perform job duties; prevailing wage determinations that are not available because DOL has not yet calculated wages for the occupation; and strict limitations on opportunities to request reconsideration and review of unfavorable decisions.
The policy of the Department of Labor is not sympathetic to difficulties that employers experience arising from technical difficulties in the application process. Instead, the agency has consistently held that employers who make errors on PERM applications should simply refile the applications with the “errors” corrected.
The problem with the recommendation to refile is that PERM applications must be completed and filed within 180 days of the beginning of the advertising and recruitment process. When an error occurs, and a denial is issued after the 180-day period, refiling is not possible without undergoing a brand new 180 day period of expensive advertising and recruitment.
The PERM Rule never contemplated lengthy delays. When the program began in 2005, the DOL had promised prompt determinations, and indeed, in initial months of the program, some applications were decided within two weeks or even on the same day. Nevertheless, processing times have grown and are currently unpredictable, sometimes taking up to a year or more if audits are issued. When the 180-day period has passed, a harmless error can necessitate a completely new application that creates an unreasonable and unfair burden on the Employer.
The best way to deal with the challenges of Zero Tolerance PERM processing is for employers to establish a multi-level internal review to confirm every detail on the PERM forms and to research each question and proper answer prior to filing with the DOL. Only very experienced personnel managers, administrative assistants, and attorneys should undertake the preparation, processing, and filing of PERM applications.