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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.
In the United States, federal agencies have broad discretionary power to create informal but legally binding standards for administrative matters. In the context of immigration, american employers and foreign workers must deal with at least three federal agencies: (1) U.S. Department of Labor OFLC (Office of Foreign Labor Certification) that administers the PERM labor certification program; (2) U.S. Citizenship and Immigration Services, the agency responsible to adjudicate I-140 Immigrant petitions; and (3) Department of State, which is responsible for the control and issuance of immigrant visas abroad.
Frequently cited is the famous Supreme Court decision Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), holding that courts should defer to agency interpretations of statutes unless the interpretations are unreasonable.
In essence, the Supreme Court recognized that because administrative agencies have special expertise, they may create ad hoc policies that have the force of law. Chevron USA also gives these agencies the right to bypass the more transparent law-making procedure that involves public participation and to adopt new policies behind closed doors that the public must follow.
The PERM Rule itself is not a hastily adopted statement of policy but the result of an official law-making process that was fully vetted and published in the Federal Register. PERM spells out in broad terms how employers may obtain DOL’s approval for foreign workers to accept job offers in the US.
The requirement to obtain alien labor certification does not apply to those who seek to enter in other categories, such as family based petitions, investors, multi-national employees, outstanding researchers and professors, persons with extraordinary or exceptional ability, national interest workers, religious worker immigrants, green card lottery winners or refugees.
Like the PERM Rule itself, published forms such as ETA 9141 (prevailing wage request) and ETA 9089 (PERM application) have also been promulgated through the legal process of publishing in the Federal Register, but there are many ambiguities and uncertainties that DOL clarifies by means of policies decided internally.
To begin with, there are Frequently Asked Questions (FAQ’s). Though not considered laws, these questions (and answers) provide guidance that employers need to know to apply under the PERM rule. An example is the requirement to document a foreign worker’s license or special skills to perform job duties. While the PERM form 9089 has a place to designate these as special job requirements (usually in H-14), due to an apparent oversight in the creation of the form there is no place to record the fact that the foreign worker has acquired the license or skill and no instruction where or how to write it on the form.
In 2013, DOL began denying PERM applications that did not show licensing qualifications in the foreign worker’s employment history. When Employers complained that there was no instruction for this on the form, DOL issued an FAQ advising employers to place licenses and special skills in Item K, a space used to describe work experience.
Templates have also become very popular to enforce agency directives. In PERM practice, Employers receive DOL templates during audits. The templates create a series of questions and demands to produce documents. Employers must provide answers. Some questions in the templates may purport to create additional legal requirements.
For example, after final determination,employers and attorneys must sign PERM applications to attest to the fact that foreign workers have not paid for any part of the PERM process, including recruitment costs or attorney fees; however, DOL uses the audit template to require the production of a separate affidavit from each party. The reason may be that DOL believes that additional sworn statements are necessary to underscore the prohibition against payment of fees by foreign workers.
DOL also has stakeholder meetings where issues are placed on agendas and discussions are memorialized in minutes. The meetings provide an opportunity for ongoing discussions about questions that raise difficult, new issues. Although unofficial, the minutes provide important guidance as to the direction of DOL’s changing policies. Stakeholder minutes usually predate FAQs and therefore enable Employers to recognize changing DOL policies and respond accordingly.
DOL also creates memoranda, consisting of opinions written by one or more DOL official and subsequently “followed” as if they were laws. An example is a memorandum on policy guidance written by Barbara Ann Farmer, "Field Memorandum: Number 48-94," issued more than 20 years ago, even before the PERM Rule was enacted in 2005, and which survives as a source of precedent to this day, which includes an instruction on the subject of roving employees. Although only intended to be a tool to achieve greater efficiency, the memorandum has been quoted for several decades as an example of DOL policy and is now regarded as a legal authority by the DOL and employers alike.
Correspondence between stakeholders and DOL officials is another source of policy-turned law. Attorneys sometimes write letters or verbal questions posing inquiries about how specific matters should be resolved.
Even casual comments occurring during question and answer sessions at conferences may be introduced as hearsay remarks by those were present and later followed as required guidance.
An interesting question is the extent to which state law may influence federal PERM practice. States have local labor and employment laws. Employers must always comply with these laws, even if they are requesting federal certification for foreign workers. An example might be a PERM application that provides for telecommuting from a home office located in a community where home offices are not permitted by local law.
State Workforce Agencies (SWA’s) are authorized and required by federal law to process job orders for employers in the State in which the job duties will be performed. The job orders must run for at least 30 days. However, beyond that broad, federal requirement, employers must comply with the rules of each SWA. Procedures to pre-register, questionnaires used to complete 30-day job orders, information required to be written in the job order, pop-up menus in the SWA on-line templates, terminology used in the job orders, and local practice affect every aspect of job order placement and may challenge employers who need to follow federal requirements.
Employers must accurately describe wage offers using federal standards, including wage ranges, prevailing and actual wage. However, some SWA job order templates use different terms to enter wage information, such as entry level salary, wage ranges, bonuses, and other descriptors that may prevent employers from putting the federally mandated wage information clearly in the context of job orders.
When controversies arise and PERM applications are denied, employers may appeal unfavorable decisions to the Board of Alien Labor Certification Appeals (BALCA). Curiously, BALCA decisions are not binding on future cases, and panels of administrative law judges sometimes rule at odds with each other when given similar fact patterns.
The challenge facing Employers is to distinguish among laws, policies, industry standards, and other norms, not only to assess their order of importance to define the correct, legal course of action, but also to anticipate changes or interpretations that may occur during the lengthy period of PERM processing.
The art of PERM practice is to know which policies and laws are important and how they interact with each other, a skill involving knowledge, experience, and a sixth sense!
Updated 07-04-2015 at 06:01 AM by JStewart
By now everyone knows that when the Employer has special requirements, they may be put in Box H-14, and that the PERM Form 9089 failed to include a page or box to put down the special qualifications acquired by the alien such as licensure, training, certificates and the like.
For almost ten years (the PERM program began on March 28, 2005) employers simply submitted proof of the alien's qualifications with the I-140 Immigrant Visa Petition. However, on occasion the lack of alien qualifications resulted in a denial under the theory that DOL should not approve a PERM application on behalf of an alien who does not demonstrate on the face of the application that he or she is qualified with a statement placed somewhere on the form.
The DOL stated publicly on numerous occasions that Employers had to put evidence of qualifications somewhere on the form, presumably in Part K-9. The method recommended was simply to state clearly in an existing job entry in K-9 the acquisition of the skill - a description, a date, and any other relevant details.
This plan worked well for Employers who knew that they had an obligation to present the information on the form but did not work well for the others who followed the PERM instructions but omitted the information not specifically instructed and therefore received denials stating that the alien appeared unqualified for the position for not having acquired the skill.
DOL accommodated those unlucky employer by allowing them to provide the missing documentation in the form of a request for reconsideration in the government error queue. Approvals were then issued.
But as complaints from the immigration bar mounted, DOL responded with an FAQ which provided guidance on how to enter the acquisition of a skill in Part K-9. As the fields on form 9089 in Part K-9 intended to document periods of employment do not correspond well with the fields logically necessary to list skill acquisition, the FAQ recommendation resembles a hodge-podge of blank or partially empty fields and confusing, irrelevant pull-down menus with the result that employers are sorely challenged to provide a seamless response that will meet the requirements of PERM's Zero Tolerance for errors on the form.
As a matter of law, the FAQ only provides guidance (and it is questionable whether this FAQ presents the best guidance available) leaving us to wonder if there is a better way.
The time honored way is to simply write the training or licensure anywhere in K-9, and possibly write in H-14 a reference to look at K-9 for further information regarding acquisition of the skill. For example, if the job requires a real estate license, the employer could write in H-14, "Real Estate Sales License Required," and under that (but still in H-14), "Alien acquired Real Estate Sales License, See K-9". Then in K-9 (in the job experience box for the appropriate time frame) the Employer could state clearly that the alien acquired the license, where, when.
Employers are advised by DOL to follow the FAQ (which is not a regulation but only guidance) and most will want to follow the FAQ for fear of running afoul of procedures recommended by the agency, while other employers report they will continue to list acquisition of special qualifications the old fashioned way, as explained in the above paragraph.
The FAQ may be viewed at http://www.foreignlaborcert.doleta.g...ers.cfm#alien8.
Updated 11-01-2014 at 04:39 PM by JStewart