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Joel Stewart on PERM Labor Certification


  1. Particular Grounds for PERM Appeals

    by , 11-14-2016 at 01:34 PM (Joel Stewart on PERM Labor Certification)
    When PERM applications are denied, employers can file requests for reconsideration to the Certifying Officer in Atlanta or requests for review (appeals) directly to the office of Administrative Law Judges in Washington, DC. The judges adjudicate decisions collectively under the aegis “Board of Alien Labor Certification Appeals” (BALCA). If a reconsideration is denied by the Certifying Officer, employers can still file an appeal to BALCA within 30 days.

    In addition to the requirement of timely filing, employers must carefully state the grounds for the appeal. A directive from BALCA advises that appeals may be dismissed if the grounds do not contain sufficient detail.

    Appeals may consist of a statement of position or a brief. While no definitions of these terms are provided in the PERM Rule, the phrase “statement of position” seems to encourage employers who do not have legal representation to file appeals in which they may make arguments in layman’s terms, while attorneys may be expected to prepare legal briefs.

    Both statements and briefs must satisfy the requirements set forth in the Board’s one-page 1988 decision, North American Printing, 88-INA-42. The decision states, “The request for review shall…set forth the particular grounds for the request.”

    An example of inadequate grounds might state simply that the Certifying Officer ignored the law, or that the law is unfair, or that the denial was unreasonable. None of these would not constitute particular grounds.

    However, if an employer states that the denial violates a specific section of the PERM Rule and why, the Board would then have proper notice about the employer’s particular grounds for appeal.

    An important issue to be aware of is that appeals cannot include arguments that are not already in the record at the time of the denial or reconsideration. When DOL issues an audit, the employer must address all the audit issues in its response. If the application is then denied, the employer may not introduce new documentation in its request for reconsideration, unless there was no opportunity to provide the documentation prior to the denial. This may occur when the DOL gives a reason for denial that was not previously stated in the audit letter.

    Furthermore, if an employer does not respond to all the issues in an audit and then tries to file a request for reconsideration or appeal to make arguments that it neglected to include in the response to the audit, it is barred from raising any new issues.

    What this means is that an appeal to BALCA is nothing more than a review of the record file and not an opportunity to introduce new facts or legal arguments. Notwithstanding these narrowly defined appeal procedures, the Board has often made decisions favorable to employers for meritorious cases.

    A checklist for appeal along this basis might include the following: (1) Is there any information or documentation missing from the record file that the Board is unaware of? (2) Did the DOL raise an issue in denial to which the employer did not previously have an opportunity to respond? (3) Did the DOL abuse its discretion in issuing a denial without sufficient cause? (4) Was there a misunderstanding arising from an inadequacy of the PERM form 9089? (5) Has the DOL misapplied the law? (6) Does the denial shock the conscience? (7) Is the law itself vague, ambiguous or unreasonable? (8) Was the Employer unable to provide information requested for good cause? (9) Was the audit language vague or ambiguous so that no reasonable person could understand itsexact meaning? (10) Was the denial based on simple typographical errors that did not affect the search for US workers?

    Since PERM appeals are very strictly construed, the best strategy is to avoid appeals entirely. Employers should always follow the regulations carefully and bear in mind that even most typographical errors can result in irreversible denials.

    Updated 12-12-2016 at 04:02 PM by JStewart

    Tags: balca, dol, perm Add / Edit Tags
  2. PERM Professional Ads May Be Placed by Private Employment Agencies

    by , 09-08-2016 at 12:30 PM (Joel Stewart on PERM Labor Certification)

    In a recent case, an Employer used a private employment agency to search for US workers. When the agency placed an ad as a form of professional recruitment, it did not include the name of the employer. The Department of Labor then denied the application because the name of the employer was missing.

    The PERM Rule specifically requires the name and location of employers to appear in two mandatory Sunday newspaper ads which are part of the basic recruitment requirements described in 656.17(f) but does not state the employer’s name must appear in other forms of recruitment as in 656.17(e).

    In a series of decisions, including an en banc ruling ago for the Symantec Corp. (2011-PER-1856, July 30, 2014), the Board of Alien Labor Certification ruled that while the name of the employer must be included in Sunday newspaper ads, the Department of Labor cannot extend this non-regulatory requirement to other forms of recruitment.

    The current decision, in the matter of RML Construction, Inc., (2012-PER-1774, August 31, 2016), is particularly important because it limits the power of the Department of Labor, a US administrative agency with wide discretion, to interpret the PERM statute and regulation. The decision clarifies the fact that agency memos and other forms of guidance amount to nothing more than the opinion of the moment, while statutes and regulations are laws that must be followed.

    Although the Supreme Court of the United States has held that opinions of agencies should be accorded deference because they are presumed to know what they are doing, agencies cannot create law through interpretations unless they rationally flow directly from the clear intent of the law.

    In RML, the Department of Labor focused on the section of the PERM Rule regarding the requirement to place two Sunday newspaper ads with the name of the employer and confused this with a different section of the law that states that advertisements placed by private employment agencies may be used as an optional form of recruitment.

    On appeal, the judges, holding in favor of the employer, said that the DOL should have focused not on the name of the employer, as is normally the case for newspaper ads but on the occupation in a more generalized sense.

    The decision in Symantec, a pivotal precedent, states that the purpose of the PERM recruitment rule is to permit employers to “advertise for the occupation involved in the application, as opposed to the specific job opportunity for which certification is sought.” In plain language, this means that the identity of the employer need not be included, because only the existence of a job opportunity in the occupation is important.

    The PERM requirement to include employers’ names has been problematic, since employers do not always want to include their names in the ads and cannot include their company name when private employment agencies place them. In fact, if the private agencies were to advertise in the name of the employer, they would have no way to reap the harvest of their labors.

    The RML decision asserts that all forms of recruitment are not equal, but employers should remember that each form of PERM recruitment has its own nuances interpreted by the Department of Labor and the Administrative Law Judges. Here the Board only discussed the optional recruitment step to use private employment agencies.

    The RML decision asserts that all forms of recruitment are not equal, but employers should remember that each form of PERM recruitment has its own nuances interpreted by the Department of Labor and the Administrative Law Judges. Here the Board only discussed the optional recruitment step to use private employment agencies.

    Updated 09-08-2016 at 06:03 PM by JStewart

  3. Delivery of PERM Audit Letters Must Be Proved

    by , 08-01-2016 at 11:33 AM (Joel Stewart on PERM Labor Certification)
    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.
  4. PERM: Spotlight on Prevailing Wage

    by , 06-15-2016 at 02:09 PM (Joel Stewart on PERM Labor Certification)
    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.
  5. Do High Tech Workers Travel or Relocate?

    by , 05-23-2016 at 12:26 PM (Joel Stewart on PERM Labor Certification)
    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.
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