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Joel Stewart on PERM Labor Certification

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  1. Foreign Equivalencies

    by , 06-05-2007 at 06:50 AM (Joel Stewart on PERM Labor Certification)
    Question & Answer:

    Question: Can you please give an opinion as to the viability of the DOL accepting the employer's requirement that an applicant for a proffered job have at a minimum a "U.S. Bachelor's Degree" -- meaning the Employer will not consider foreign equivalency. (No employees have foreign bachelor's degrees). P.S. I love your BALCA summaries.

    Answer: The Employer sets the requirements, not the DOL. There are limits and restrictions, of course, but they address the issue of minimum requirements, i.e., the requirements have to be minimum and must be normal in the U.S. The DOL permits Employers to add foreign equivalencies without special justification or documentation, and the PERM form clarifies this by providing a special question to this effect in Question H-9-A. "Is a foreign educational equivalent acceptable." If the Employer answers yes, it is broadening the field of applicants to include workers trained abroad. Conversely, if the Employer checks "No" to the same question, the Employer is limiting the field of applicants to include only workers who are trained in the U.S. As between the two, arguments can be made as to which is more or less restrictive.

    My own view is that the position you take, to limit the pool of workers to those with an American diploma, is more in line with the DOL's philosophy to trim the job to its minimum requirements and give preference to American workers. The other option, to include foreign diplomas, broadens the minimum requirements, but appears to have as its purpose to include foreign-trained workers, i.e., foreigners! In your hypothesis, the Employer can require a Bachelor's Degree, because it is normal in the U.S. and should answer "No" to Item H-9.
  2. Job Interviews and Resumes

    by , 05-30-2007 at 11:21 AM (Joel Stewart on PERM Labor Certification)
    Two questions received: 1. Does the employer have a duty to monitor the job order for applicants or do they wait for applicants to be re ferred to them? 2. Pre-PERM, employers don't need to contact applicants who clearly do not have any experience in the job offered. According to the PERM Book, the applicant should contact applicants with transferable that would enable them to learn the minimum skills on the job within a reasonable amount of time. If the employer stated minimum 3 months of experience for a housekeeper, should the employer consider an applicant who has no such experience but who worked as a cook or a waitress (and therefore might have transferable skills cleaning or cooking in a household)? Should an employer send rejection notice to an applicant who clearly do not meet requirements or not contact them at all?

    The Employer has to place an ad in the state job bank for 30 days, however, job applicants normally will be instructed to send resumes to the employer. As a result, the Employer needs to review those resumes which it receives. Although the State Workforce Agency is responsible to place and maintain the job order for the Employer, the latter has the responsibility to check whether the state has made an error and to be certain that the job order ran for 30 days and in accordance with the regulations.

    The duty to investigate a job applicant's qualifications would certainly apply if the job order was for a houseworker who has worked in alternate occupations such as a cook or waitress. Many of the houseworker's duties are subsumed in the alternate occupations. This would be especially true in those circumstances where the minimum requirements are only three months, and there is no one special skill that would require lengthy training time.

    Rejection notices should rarely be sent. The better view is to contact each applicant to confirm whether the applicant's qualifications are those listed on the resume or whether the applcicant might have some related or alternate experience, education or training so as to be considered qualified for the job.
  3. Substitution of Aliens and Sec. 245-i

    by , 05-30-2007 at 10:30 AM (Joel Stewart on PERM Labor Certification)
    I received a question regarding substitution of an alien. In the fact pattern, the original alien was in the US and the application for labor certification was filed no later than April 30, 2001. The question is whether a new alien who arrived in the US after that date can be substituted and benefit from the same application. The answer is "Yes", and I would add the following comments: (1) Any alien who had the same qualifications at the time of the original filing qualifies for substitution. (2) For substitution, it does not matter whether the alien was or is legal or illegal or whether the alien was or is in the U.S. at any time. (2) A substituted alien does not benefit from the 245-i status of the original alien. Only the original alien can apply for adjustment of status under 245-i protection. (3) The priority date for a labor certification is the original filing date, even if a new alien is substituted. (4) It also does not matter if the alien was in the USat the time the application was filed. For example, an alien who was not in the US in April 2001, but who arrived some time after April 2001 illegally or who then became illegal can benefit from 245-i as well as substitution. (5) If the new alien is not protected by 245-i and has been illegal in the US more than 180 days, he or she can be substituted but cannot adjust status. In conclusion, 245-i and substitution are two different laws, and aliens need to qualify for each law independently and separately.
  4. DOL Prohibits Attorney Fees

    by , 05-25-2007 at 01:47 PM (Joel Stewart on PERM Labor Certification)


    As most readers know, the DOL Substitution Rule issued on May 16, 2007, prohibits attorney fees in certain situations. DOL has ruled that attorneys may not be paid to represent the employer and the alien, unless the employer pays the fees. Alternatively, the attorney may represent the alien and be paid by the alien, but in that case the attorney may not represent the employer. The rule is directed to those situations where attorneys provide dual representation, itself a controversial topic, for the employer and the alien. The rule itself presents many legal issues and places all the parties in jeopardy for possible violation of ethics and law.

    If we are going to discuss attorney fees, we should start by defining the services that attorneys provide in the attorney-client relationship. In an article written in 2004 by Hamel Vyas for AILA, "Ethical Issues for Immigration Lawyers," in 2004, Ms. Vyas defines legal services by stating that a lawyer may be called upon to act as advisor, advocate, counselor, negotiator, intermediary, and evaluator, and that a lawyer's ultimate goals are to seek improvement of the law, the administration of justice and the quality of service rendered by the legal professional.

    The term "Attorney-in-Fact" should not be confused with the term "attorney" or "lawyer". An attorney-in-fact is a fiduciary for the principal. The law requires an attorney-in-fact to be completely honest with and loyal to the principal in their dealings with each other. There are three broad classes of Agents: (1) Universal agents who hold broad authority to act on behalf of the Principal, e.g. they may hold a power of attorney; (2) General Agents hold a more limited authority to conduct a series of transactions over a continuous period of time; and (3) Special Agents who are authorized to conduct either only a single transaction or a specified series of transactions over a limited period of time.

    An attorney-at-law in the United States is a lawyer --someone licensed to practice law in a particular jurisdiction. In most other common-law jurisdictions lawyers are not called attorneys, and the term "attorney" generally refers to either attorneys-in-fact or lawyers from the United States.

    The PERM regulations state that the Agent or Attorney, whose name appears in Part C, will be the person to whom written communications will be sent after the original filing. It is clear from these definitions that the person described on the PERM Form 9089 in Part C (Agent or Attorney) is not a lawyer, i.e., not a person acting as an Advocate, but a Special Agent.

    The PERM form also has a section (M) "Declaration of Preparer" which provides for the person completing the form or the person who prepared the form. The question is whether this person is providing legal services or merely acting as an agent. The Department of Labor has estimated that it takes approximately one hour to fill out a PERM form. Since  the hour would be spent checking addresses, dates, phone numbers, corporate data, and other ministerial/secretarial services, there would be no time left wthin this hour to provide legal services. Electronic sub-accounts are also provided for Agents or Attorneys, who are permitted to fill out the forms electronically. However, as in the written preparation of the forms, if they are filled out by an attorney, the attorney is not acting as a lawyer but rather as an Agent.

    Interestingly, the PERM form does not inquire if the parties have a lawyer or have requested legal services of a lawyer with relationship to the PERM application. There is no G-28 for lawyers to make an appearance before the agency, nor does the DOL acknowledge that the parties may be represented by an attorney (as they did in the pre-PERM regulations). One might conclude that the role of lawyer is completely elminated from the application. Indeed, the new rule states that attorneys are not required.

    In the same article cited above, Ms. Vyas discusses attorney fees. Factors to be considered are set forth. Most lawyers are familiar with these criteria -  novelty and difficulty of the case, amount of time and results obtained, experience of the attorney - but in each instance it must be assumed that these criteria are used to judge the value of attorney fees, and not fees for acting as agent, trustee or attorney in fact.

    DOL has stated in the well-inown "Substitution Rule" that the services of an attorney are not required in the PERM process. Let us assume, for example, that the alien's attorney decides to act as Agent for the Employer by appearing in Part C. And let us also assume that the Attorney or the Attorney's employee performs the secretarial task of filling out the form

    Bearing in mind that a licensed attorney is not required to act as Agent per Part C and only a speedy typist is needed to complete Form 9089 per part M, it appears that these services do not amount to the practice of law. Furthermore, if the participation as agent or secretary is not the practice of law, then this limited participation would not come under the prohibition to pay the services of the attorney.

    The next step is to ponder when and if an attorney, in the context of PERM proceedings, may transcent the role of agent and provide legal services and to whom. I will address this issue on another day, but meanwhile invite your comments!

  5. DOL Substitution Rule Effective July 16, 2007

    by , 05-16-2007 at 01:07 PM (Joel Stewart on PERM Labor Certification)
    The long-awaited substitution rule has finally been published in the Federal Register as an amendment to the existing rule, making it part of the official regulations of the Employment and Training Administration. The final rule contains very lengthy discussions of the issues and public comments regarding each part of the proposed rule.

    The following is a list  of the most important changes:

    (1) Barter, Purchase and Sale of labor certifications is prohibited, and each of those terms is now defined in 656.3 of the PERM Rule. Note that transfer of labor certification from one employer to another may be possible, if no consideration changes hands;

    (2) Substitution of alien beneficiaries is now prohibited for any application submitted after July 16, 2007. Note that previously approved substitutions and requests for substitutions in the pipeline are still valid, although the rule actually states the contrary, due to a technical error.

    (3) Modifications to labor certifications are also prohibited after July 16, 2007, if such requests for modification were submitted after July 16, 2007. Note: If taken literally, no amendments may be made on labor certification applications including non-substantive changes to address and telephone numbers.

    (4) Although aliens may pay their own attorney fees, only  employers may pay attorney fees if the attorney represents both the alien and the employer. Note: This appears to be the most controversial part of the new rule.

    (5) Motions to Reconsider may only include documentation (a) actually received by DOL from the employer or (b) in the record file maintained for submission to DOL in compliance with the regulations. Note: No external information may be submitted to prove extenuating circumstances or manifest injustice;

    (6) Motions to Reconsider may not address errors resulting from failure to follow system prompts or other direction instructions. Note: In the aftermath of HealthAmerica, the DOL is eliminating possible claims of harmless error or technical problems with software.

    (7) Requests for Review to BALCA may only include legal arguments or evidence that was already in the record, except that review of disbarment may be de novo. Note: Many BALCA decisions have dealt with the integrity of the record itself, i.e., whether the CO had a complete and accurate copy of the record and how the Employer may supplement a faulty record file.

    (8) Detailed rules for Appeal to BALCA. Note: Must set forth the particular grounds for the request, identify the particular determination and include a copy of the final determination.

    (9) I-140 Petitions must be filed within 180 calendar days of PERM approval. Note: The day after the approval is the first day and the 180th day is the last day for filing the I-140. 

    (10) Permanent Labor Certifications are only valid for the particular job opportunity, the alien named in the application (unless substition was approved prior to July 16, 2007), and the area of intended employment. Note: This conflicts with AC-21 which permits substitution to similar job in any area of employment 180 days after filing applications for adjustment of status.

    (11) Detailed rules are set forth involving denials, fraud, willful misrepresentation, suspension, criminal indictments, and disbarment. Note: The disbarment provisions are new to PERM.

    (12) DOL has the right to request any information the CO deems relevant, including the existence of a bona fide job opportunity and the disclosure of payments. Note: The clear implication is that the payment of attorney fees by the alien, even for representation of the alien, may be seen as an extension of grounds for denial based on lack of a bona fide job opportunity.

    This is a brief analysis of the July 16, 2007 amendment. Further, more detailed analyses will follow in future postings!
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