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Joel Stewart on PERM Labor Certification


  1. Attorney Fee Rule: Who can pay what and to whom?

    by , 07-25-2007 at 08:21 AM (Joel Stewart on PERM Labor Certification)
    Now that the new DOL regulations are in effect, more questions have arisen about payment for attorney fees and recruitment costs like advertising.

    The rule states that after the effective date of July 16, 2007, no alien may pay the costs of a PERM case (or other pre-PERM case pending), and no alien may pay the attorney fees for the Employer. The alien may only pay for his or her own attorney fees.

    One immediate problem involves payment of ads and other recruitment fees, if a contract providing that the alien must pay recruitment costs has been signed between the parties (Employer, Alien, and Attorney), preceding the effective date of the new Rule on July 16, 2007. Which law trumps...does a preexisting contract trump the DOL regulation, or does the DOL regulation trump a preexisting contract?

    The Immigration Bar always prefers to seek a safe haven: They want someone to provide an official response, "Can the alien pay for costs if the contract predates the effective date of the new rule?" DOL may issue an official response in the form of an FAQ on this point, but until an FAQ is issued, each attorney must provide the answer to his or her clients.

    It seems to me that the proper approach is to follow the PERM rule, until further clarification is available in the form of an FAQ or case-law. I realize that some attorneys are confident that preexisting contracts prevail, not the PERM rule, however, attorneys should then be prepared to litigate, if DOL disagrees in a context negative to a specific client.

    One must bear in mind that the DOL allowed a grace period before the effective date of the new rule. Presumably, all ads contemplated and required by existing contracts could have been ordered, placed, billed and paid (even if by the alien) prior to July 16, 2007. Therefore, it appears that only the Employer may now pay, not the alien.

    I welcome the opposing view, i.e., if any of my colleagues can provide strong arguments to support the position that a preexisting contract still trumps the PERM Rule, even after the effective date, I would be pleased to receive their comments here for our review and analysis.
  2. 3rd Preference Available in July!

    by , 06-27-2007 at 12:49 PM (Joel Stewart on PERM Labor Certification)
    What this means is that persons who have PERM cases approved (and who are not eligible for 2nd preference) or who can apply under Schedule A on the DOl list of preferred occupations (Nurses, Physical Therapists, & Exceptional Aliens) can apply for residency (Adjustment of Status) at the same time that the I-140 Petition is filed by the Employer. To file in July, these persons must be qualified. The word "qualified" has two meanings. First, qualified persons are those who have the experience or education required to perform the job duties. Second, qualified persons are those who do not have a legal impediment to apply for a green card, like criminal convictions, prior immigration violations, and unusual political behavior.

    If a person has these qualifications, he or she can apply for residency during the month of July 2007, because the 3rd preference category will not be backlogged. To take advantage of this opportunity, the applicant must file an I-140 Petition and and I-485 Adjustment Application. The Petition and Application must be signed, include the filing fee, and be accompanied by the necessary documents. All these requirements are described on the Instructions with the Petitions and can be downloaded from the government site

    With this type of simultaneous filing, the applicant can request a work permit and a travel permit. However, only those who have not been illegal for more than 180 days can request a travel permit, because if they leave the country, they cannot come back for 3-10 years.

    Finally, there is the possibility to substitute a new alien in the process of another. This law will end on July 16, 2007, however, for the next several weeks, a sponsor (employer) can submit a new alien in the process instead of the former alien, who is no longer available. The new alien must have all the qualifications held by the former to qualify for the job opportunity.

    The opportunity to file for permanent residency in July will benefit more than 100,000 aliens who received PERM approvals since 2005 but could not apply for residency due to backlogs in visa availability!
  3. Reflections on Attorney Fees

    by , 06-18-2007 at 11:10 AM (Joel Stewart on PERM Labor Certification)
    While in Orlando, I discussed some theories that might apply to the impending ban on attorney fees for labor certifications after July 16, 2007. The ban prevents aliens from paying attorney fees to cover services performed for the Employer. The ban actually applies to agents, representatives, attorneys and all costs involved in the labor certification (PERM) process.

    Theories set forth to comply with the new rule include the following: (1) Separate the attorney fees and costs for labor certification processing and bill them entirely to the Employer, while not billing anything to the alien. The PERM rule suggests that the preparation of a PERM case takes about one hour. The client (Alien) would be billed for the remainder of the case including the petition and the adjustment of status. (2) Represent the Alien and not the Employer, provided that the Employer seek representation by an agency such as "The Perm Center" instead of an Attorney. The Perm Center would simply perform those duties suggested by the PERM regulations: (a) Represent the Employer as Agent in Part "E" and (b) Sign as Preparer if submitting the form to DOL. Either or both of these agency options may be omitted. (3) Represent the alien and not the Employer, provided that the alien's attorney would prepare the application forms and send them to the Employer's attorney (not necessarily an immigration lawyer) who would then forward them to the Employer for signature. (4) Represent the alien and not the Employer but deal directly with the Employer on the assumption that a lawyer may represent one party without representing the other, and still deal with both directly, provided the non-represented party consents. In all the above (except number one) it is assumed that the Employer will sign a waiver of representation or acknowledgement that the attorney represents the alien and not the Employer). (5) Collect funds and deposit them in a trust account, pending a court decision from pending litigation to permit an attorney to represent both the Employer and the Alien and be paid by either one or by both.

    I would appreciate receiving comments, questions, and queries on issues of practicality, legality and ethics relating to any of the above.
  4. Conforming Wage Ranges on Posting & 9089

    by , 06-09-2007 at 05:47 AM (Joel Stewart on PERM Labor Certification)
    Question: I hope you might be able to provide me some guidance. When listing a range on a Notice of Filing (NOF), is it necessary to also indicate the same range on the 9089, or can you simply give the specific salary for that particular case, so long as it falls within the range on the NOF? If you do have to mirror the range, do you have to show ability to pay for the highest wage on the range?  It was my understanding that if there was a salary range for a particularly position, then that range could be reflected on the NOF and you wouldn't have to do individualized postings for each employee of a company that make different salaries but in the same job. For a particular company for example, I have multiple positions for a same job, but each employee is making a different wage -- all of which fall within the range though. Am I able on the 9089 to list a singular wage being earned for a particular employee in that particular case as the offered wage? Or do I have to list a range on the 9089? And if I do, do I have to show the ability to pay the top or bottom of the range? Thanks again. I appreciate you taking the time to read this. Any insight you can provide would be really appreciated.

    Answer: You can post one NOF for multiple jobs in the same salary range. In effect, you are posting for the same job, not for different jobs -- just the salary varies with years of experience. Then on the labor cert, since you posted a range, you can show the same range on Form 9089 Item "G". Although under some circumstances, it might be OK to put a wage range in the NOF and only a specific wage offer for an alien in Item "G", I think the more correct way is to put the range in "G" as well. Why? Because the job is offered in a range, and workers will be paid anywhere on the range. At the time of interview, the wage for the job will be somewhere on the range, depending on years of experience. In effect, there is no single, correct wage, only a range. Of course, the bottom level of the range cannot be lower than the prevailing wage determination. Beware that in your hypothetical, we are assuming that the job offered is actually the same in each case. In some situations, a difference in salary can reflect not only additional years of experience, but different jobs due to level of supervision and variation in job duties. In that case the job offer is not the same. I fear that your jobs may actually be different, so you must review the job duties and requirements carefully, before you may determine that the jobs are the "same".  Finally, you asked about proving the ability to pay the wage. The requirement to prove the wage arises mostly when you file the I-140 Petition, although the issue may be brought up the CO as part of a labor certification determination. It seems clear that the Employer should be prepared to prove that it is able to pay anywhere on the range, however, if the alien is currently working in the job and earning a wage anywhere on the range, proof in the form of the alien's W-2, IRS 1040 or pay records should be sufficient to prove the Employer's ability to pay the wage to that particular beneficiary, even though the alien is not earning a salary at the highest end of the range.
  5. Foreign Equivalencies

    by , 06-05-2007 at 05:50 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.
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