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Joel Stewart on PERM Labor Certification


  1. Special Requirements Not Welcome

    by , 01-03-2017 at 08:50 AM (Joel Stewart on PERM Labor Certification)

    The US Department of Labor (DOL) has long held the belief thatemployers should not recruit for jobs requiring special skills or licenses if USworkers are available who could be easily trained. The DOL perspective on a trainingrequirement is not absolute, as long as employers can show that the on-the-jobtraining is not possible in a reasonable period of time.

    The DOL accepts plausibleexplanations from employers who can demonstrate that it may take a great dealof time or expense to train someone who does not possess a special skill.

    Employers often determine theability to perform the skill based on information listed in resumes of jobapplicants and reject workers because they did not appear to possess thoseskills. However, the rule is that US workers who apply jobs should not berejected on the basis of their resume alone, because they might qualify basedon some other combination of experience, education, or training.

    To successfully defend specialskill requirements, employers can show businessnecessity, i.e., by demonstrating that the job requirements are essential toperform the job duties.

    As a matter oflaw, the employer’s assessment of its own requirements and of candidates’abilities to perform job duties with special skills takes priority over theopinion of the Department of Labor, since employers are the ones most qualifiedto make those decisions.

    In recent months,DOL has denied cases where job skills are not quantified, in part because theycannot be properly measured.

    The matter hasbeen raised at meetings between the US Department of Labor, attorneys andemployers, with the result that guidance will soon be published regarding theproper way to list special skills in job offers.

    A related issue isthatoften, when no quantification ofskill requirements is provided, the government simply concludes that jobapplicants (including the foreign worker beneficiary of the PERM application)need to prove that they worked with those skills throughout the entire periodof minimum experience required in the job offer.

    Sometimes workersmay acquire skills in intangible way, such as through special hobbies,interests or life experiences. The important issue in these types of skillacquisition is not the quantification of how long or by what means a person acquiredthe skill, but simply whether the person possesses the necessary skill and howthe employer will determine that fact.

    Employers shouldbe aware that it is difficult to assert that job applicants are unqualified toperform a specific job if details of skill requirements are not clearly stated inthe job offer and if job applicants are not interviewed to determine if theyare qualified -- even when their resumes do not clearly indicate that they possessthe necessary, special skills.
  2. PERM Liaison Update from Washington

    by , 12-12-2016 at 03:58 PM (Joel Stewart on PERM Labor Certification)
    A meeting with the Department of Labor was held on December 6, 2016. The meeting provided an opportunity for stakeholders to pose questions regarding the PERM process. A wide range of topics was discussed.

    1. Processing times. In 2016, there was a significant slow-down in prevailing wage determinations. While requests used to take one month, a backlog of almost six months developed in the second half of the year. DOL explained that because they have limited resources, they had to transfer examiners from the permanent program (PERM) to adjudicate temporary labor certification requests for agricultural workers. The need for agricultural workers is seasonal, so backlogs vary at different times of the year.

    2. Tools for Prevailing Wage Requests. The Prevailing Wage Center uses the same tools as stakeholders, such as the O*Net database of occupations, information about commuting found in the Metropolitan Statistical Areas, and wage surveys. DOL advised that attachments with documentation should not be uploaded, because examiners do not have time to review the material. Instead, documentation should be summarized somewhere on the prevailing wage form 9141. Attachments would only be used if the employer asks DOL for redetermination or reconsideration.

    3. Combinations of Job Duties. DOL recognizes that many occupations share similar job duties. When this occurs, the prevailing wage should be increased to a higher level (there are four levels in all). Where an occupation has shared duties, OFLC will assign the higher of the two wages.

    4. Two Or More PERM Filings for the Same Job. OFLC can detect multiple filings by searching for the name of the employer and comparing the SOC codes in their applications. Stakeholders report that if two applications are filed for the same job, employers may expect a denial instead of an opportunity to withdraw. This is a change in policy, because in the past employers normally received an opportunity to withdraw one of the duplicate applications.

    5. ACWIA. The American Competitive and Workforce Improvement Act applies to prevailing wage determinations for institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. Requests for prevailing wage subject to ACWIA take into consideration the type and size of employer and not just the type of job. Because DOL may not always recognize that a prevailing wage request is one which should be determined under ACWIA, employers may place an asterisk in the title field to correspond with a written explanation regarding ACWIA in another box.

    6. Prioritizing Adjudications. The Atlanta Processing Center does not adjudicate applications for PERM based on first in, first out. Difficult cases take more time than others.

    7. Unquantified Special Requirements and Skills. Specials skills are usually placed on the PERM Form 9089 in Box H-14. Terminology used in H-14 often includes words and phrases like “knowledge of,” “proficiency in,” or similar terminology. These special requirements should be quantified, but there is no DOL guidance on this subject. DOL has been denying applications that do not include quantification, but a recent decision from the Board of Alien Labor Certification (Smartzip Analytics, 2016-PER-695, November 9, 2016) has held that DOL should explain to employers how they may meet the requirement to quantify rather than deny applications for lack of guidance. In view of this important BALCA decision, OFLC has agreed to stop issuing denials and to provide guidance in the form of an FAQ.

    8. Salary Range. OFLC has often denied PERM applications where employers listed salaries with phrases like “competitive salary,” “DOE [Depends on experience],” or “negotiable.” Many State Workforce Agencies have job order templates that do not permit employers to state wage ranges in a manner consistent with the PERM Rules. In Matter of Tek Services, LLC (2016-PER-207, (November 16, 2016), the Board reversed a denial where the employer advertised “competitive salary” instead of the one in the Prevailing Wage Determination. Based on this decision, DOL stated that it would approve cases that utilize salary ranges for job bank orders.

    9. Harmless Error. Although harmless error does not exist in the PERM Rule, the Board has carved out exceptions which in some cases may include corrections for simple, typographical errors like the one where an employer typed the wrong date for the second Sunday ad. Both Sunday ads were properly placed on Sunday, but one of the dates reported by the employer on the PERM form was in error. DOL does not agree that changes on the form may be made to correct harmless errors. Instead, corrections may be made only after denial and appeal to BALCA.

    10. Digitalized Signatures. DOL requires original signatures and does not accept electronic or digitalized versions of signatures.

    11. Electronic Notification of PERM Letters. On December 1, 2016, the Board began to utilize electronic notification for audits, denials, requests for information, confirmation of withdrawals, and decisions from appeals, instead of hard copy notifications.

    Updated 12-13-2016 at 10:27 AM by JStewart

  3. 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
  4. 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

  5. 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.
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