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Joel Stewart on PERM Labor Certification

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  1. Magic Language Reminder

    by , 08-20-2007 at 12:24 PM (Joel Stewart on PERM Labor Certification)
    Just when we thought we had written enough on the subject, I had two more calls from lawyers who ran afoul of this problem. I sympathize with them, because although much has been written on a broad, theoretical level about the Kellogg Trilogy which is the origin of the rule, under PERM the Magic Language is required only under certain, limited circumstances. If the conditions are not recognized, the application will be denied, because we failed to insert the Magic Language. The rule is simple: If the alien is (1) working for the employer and (2) qualifies for the minimum requirements by virtue of alternate experience requirements, the Magic Language must be inserted in H-14.
  2. Who Signs Form 9089 When Attorney/Preparer Not Available

    by , 08-14-2007 at 05:01 AM (Joel Stewart on PERM Labor Certification)


























    Question:





    A PERM application was prepared and filed by previous counsel and it was approved. The Client then fired the previous attorney and hired us for the concurrent I-140 & I-485 application. We will file the case with our G-28, however, the previous attorney sent the 9089 form to client without signing section M. The question is -- who signs Section M in form 9089 as the attorney? My guess is that it should be the previous attorney, since the question is "Who prepared the form?" and she is the one who prepared it.





    Answer:





    You stated that the Attorney prepared the form. There are three parties to the PERM case: (1) The Employer, (2) The Alien, and (3) The Preparer. The Preparer need not be the attorney. The Attorney may also act as Agent. (Note that the Attorney only appears in a PERM case as Agent or Preparer and not as Attorney.) Theoretically, the Employer, the Alien or the Preparer, or any combination thereof, might not be available to sign the form. If the Employer is no longer available, and if the actual employment entity has changed, it might be possible to transfer the labor certification and substitute a new Employer. If it is the same entity, then a new, responsible person may sign in lieu of the original. Due to the prohibition on substitution of aliens, it is no longer possible to substitute an Alien. The Form Preparer may no longer be available to sign, as in the current case. In your fact pattern, only the original Preparer may sign. Therefore, the previous attorney should sign as Preparer of the 9089 Form, not you, because you would be certifying (incorrectly) that you prepared the case for filing. It appears that the previous attorney has a contractual and ethical responsibility to sign that Form, even though he is not continuing with the preparation of an I-140 petition. If previous counsel is unwililng to sign, or if he delays unreasonably, you should file the I-140 without the Preparer's signature and provide an explanation to the USCIS Service Center along with your G-28. One of the electronic program's weaknesses is that it requires post-approval signatures, leaving great uncertainty as to how to sign the Form in situations where one of the parties is no longer available.
  3. Important Comments on 2nd / 3rd Preference Issue

    by , 08-07-2007 at 01:01 PM (Joel Stewart on PERM Labor Certification)
    Comment by Michelle Skole:

    An alien can qualify as a 3rd preference skilled worker by virtue of being either professional or a skilled worker. Thus an employer requirement that states bachelors or equivalent may create some wiggle room for CIS to argue that this is a professional requirement, and they should be able to determine what is professional. Where the alien does not have the Bachelor's, or at least equivalent education, it might make sense to make the 2 years experience and 2 years post secondary education the primary requirement and to make a bachelors or four years of college the alternative that can be substituted.

    Michelle's comment is a good one -- by putting "or equivalent" and nothing more, you open the door for CIS to determine what your requirements are! -- JS

    Comment by Sheila Danzig:

    In both 2006 and 2007 the AILA liason committee addressed this matter. The following response by the Nebraska Service Center was given to a question posed during the April 19, 2006 AILA liaison visit with the I-140 product line manager supervisors: We are aware that some countries (i.e., many European countries have educational systems that have the equivalent of 13 years education prior to university, and that education plus a three-year university degree is the equivalent of a Bachelor's degree in the U.S. However, many other countries' educational systems have only 12 years of education prior to university, and then only three years of university coursework. With respect to such degree, we need evidence that the beneficiary has the equivalent of the required degree...A simple credential evaluation stating that the degree is equivalent may not be sufficient. It should be supported by a detailed explanation of how that conclusion was made and the transcripts of the beneficiary's schooling to support the explanation and to document where the evaluator found the coursework equating a four-year degree. In this response, the Center acknowledges that a degree issued in an educational system, such as that pertaining in India, may be accepted as the equivalent of a United States four year bachelor's degree provided coursework is demonstrated that equates to a four year degree. Again, as stated in the April 2007 NSC Liaison Spring Meeting: 2. We understand that NSC reviews a beneficiary's educational qualifications on a case by case basis, and considers credential evaluations to be purely advisory in nature. The case by case olicy makes it difficult for petitioners to understand what documentation is needed to support their case. One member reports receiving multiple RFEs requesting documentation of the "length and complexity of the academic program; but this type of request in an RFE still does not provide the guidance needed to prepare a response. For the situations listed in Question 1 where documentation beyond the official academic record is needed to establish either bachelor's degree or master's degree equivalency, it would be helpful if NSC could provide some basic guidance concerning the minimum content of the supplementary documentation that would be needed to establish foreign degree equivalency with U.S. degrees. For example, for EB2 cases involving beneficiaries with an Indian 3 year bachelor's degree followed by a 2 year master's degree, we understand that NSC has approved I-140s where the petitioner has submitted either: a. Examples of comparable U.S. master's degree programs requiring only one year to complete (indicating that a total of 5 years of undergraduate and graduate level education is sufficient); or b. Credential evaluations that provide a detailed comparison of credit hours completed by the beneficiary for the 3 year bachelor's degree program with credit hours required by comparable U.S. bachelor's programs. Please confirm whether either or both of these types of documentation can establish equivalency in situations where NSC requires supplementary evidence of degree equivalency. Answer: Generally either of these would be sufficient to permit the service to make a determination regarding equivalency of education. Each petition filed must contain sufficient documentary evidence to establish that the beneficiary meets the qualifications set forth in the labor certification. If a master's degree is required and the beneficiary does not have a U.S. master's degree in the specified field of study the petitioner should be prepared to submit sufficient documentation to establish that the education that the beneficiary possesses is the equivalent to a U.S. master's degree in the required field. Citing these two responses we have been able to show an equivalency, based on classroom hours, UNESCO regulations and more, to a US bachelor's degree. While we do not have 100% approvals the majority are approved for both EB2 and EB3. We agree that the best approach is EB3, skilled worker with 2 years of experience and 2 years of post secondary indicated on the labor certificate. However, if you are working with an approved labor that states a bachelor's degree is required, we have had good success with USCIS with this approach. We have a 400+ page reference file that we supply as well

    Sheila -- I would give anything to see your 400+page reference file....! -- JS
  4. Bachelor or Equivalent Denials Spreading from 2nd Preference to 3rd Preference

    by , 07-31-2007 at 02:49 AM (Joel Stewart on PERM Labor Certification)
    It is now well established that in a 2nd preference petition, the alien must have a full bachelor's degree, not a combination of education and work experience not amounting to a matriculation in a degree granting university. In this sense, the 2nd preference is unlike an H-1B visa which permits substitution of training or work experience under the three-for-one standard instead of a diploma. Accordingly, in 2nd preference proceedings, USCIS interprets the phrase "bachelor or equiv" on a labor certification form to mean a foreign equivalent, and not a combo-equivalent.

    The controversy, however, has recently spread to the 3rd preference, as well as the 2nd preference. I recently reviewed several cases sent to me by colleagues. In these cases, the USCIS denied the petitioner's 3rd preference petition for the same reasons that they would deny a 2nd preference. The labor certifications stated that a bachelor or equivalent was required to satisfy the educational requirement, as well as years of experience to satisfy the experience requirement.

    One should stand back for a moment and review the requirements for 2nd and 3rd preference. To qualify for 2nd Preference, the petition must document that the alien has an Advanced Degree or be Exceptional. Exceptional aliens do not require a degree, but may qualify merely by documenting the " Exceptional Alien " criteria listed in the regulations.) Additionally, in cases where the alien has an advanced degree, a National Interest Waiver is possible (although not probable!) for aliens who are qualified.

    If the alien does not possess an advanced degree, the alien may qualify by documenting the attainment of a Bachelor's Degree plus five years progressive experience. The degree in such cases may not be a combination of education and experience, but only a pure degree resulting from matriculation in a degree-granting program.

    Yet many lawyers are accustomed to filing H-1B applications, where they may show the alien is qualified by a combination of education, experience or training. These lawyers transfer their H-1B concepts to labor certification practice and draft applications that state that the employer will accept a Bachelor's or Equivalent. Therein lies the problem. What works for H-1B does not work for Labor Certification.

    The Third Preference is quite different from the Second Preference. In the 3rd, the alien may qualify either by having a Bachelor's Degree, or two years of post-secondary education (training) or two years of experience. The requirements sound very much like the now-familiar Magic Language -- Any suitable combination of two years education, experience or training is acceptable.

    In the cases I have seen, the employers required a Bachelors or Equivalent and more than two years experience. In filing a 3rd preference petition, it should be clear that if the requirements include two years ore more of post secondary education and two years or more of experience, the alien may qualify for 3rd preference under either category, i.e., either education or experience, if they amount to two years or more. Yet USCIS denied cases where the petition required years of experience and the alien possessed years of experience, where the petition also required a Bachelor Degree or Equivalent and the alien did not have a pure Bachelor's Degree, but only one that was equivalent based on education, experience or training.

    The reason the Bachelor's or Equivalent is relevent to the 2nd Preference is that the statute states that the alien must have an advanced degree or a Bachelor's Degree plus five years experience, and in these cases the Bachelor's Degree may not be based on a combination of skills, but only on the attainment of a full Bachelor's Degree granted by an accredited university.

    However, this standard, dictated by statute for the determination of 2nd preference, has nothing to do with 3rd preference. USCIS can not apply the 2nd preference " pure degree " requirement to 3rd preference. The reason is that in the third preference, the issue is not a statutory requirement but the employer's own requirement. The employer sets the minimum requirements and may require and accept any kind of experience, education or training that is legal. If the Employer wants to require a Bachelor or Equivalent, in the sense of an equivalency based on education and experience, and not just on education, the employer may do so.

    In denying 3rd preference petitions with a " Bachelor or Equivalent " listed as a requirement, USCIS is misapplying the narrower, stricter requirement for 2nd preference to the third preference. Practitioners need to rebut such arguments with a strong legal memorandum documenting that the USCIS is applying an incorrect legal analysis requiring the 2nd preference statutory requirement of a Bachelor Degree instead of the more flexible 3rd preference standard which flows from the Employer's actual, minimum requirements and not from a statutory standard.

    The best remedy is to draft Labor Certifications more carefully, avoiding phrases like " or equivalent " where the equivalency is not defined, and not requiring Bachelor Degree where the alien does not possess a full-fledged Bachelor Degree but only possesses an expert opinion of equivalency based on a hodge podge of courses and experience.
  5. 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.
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