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Joel Stewart on PERM Labor Certification

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  1. 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.
  2. 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!

  3. 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!
  4. ILW PERM Workshops

    by , 04-26-2007 at 09:52 AM (Joel Stewart on PERM Labor Certification)
    Just a quick note on the PERM Workshops. ILW is scheduling them all around the country. The Workshops are a great opportunity to learn more about PERM and get together with persons who are highly motivated and interested to share their questions and ideas. The Workshops take place during one very intense day, broken up into four sessions. The sessions cover everything from soup to nuts -- how to prepare a PERM application, deal with the O*Net and the 9089 form, calculate and request prevailing wage, avoid restrictive requirements, conduct recruitment, and respond to audits, final determinations, reconsiderations, and appeals. The Workshops are not lectures but interactive sessions in the sense that participants can ask questions and follow along with special materials and handouts. I personally look forward to the Workshops to make friends with persons from around the country. If you are wondering whether you need to attend a PERM Workshop, consider the 10 questions below. If you can answer them correctly, you do not need to come to the workshop. If not, you better join us ASAP. Of course, even those who correctly answer the questions can come and share their knowledge with us!

    (1) What box is used for the Magic Language? (If you do not know what the Magic Language is, you should proceed no further and sign up for a Workship right away!).

    (2) What is the difference between a job and an occupation?

    (3) When does the PERM process use the old SVP standard and when does it use the new O*Net standard for experience, educaion, and training?

    (4) How many days do you have to respond to an Audit or Denial?

    (5) What kinds of errors can be corrected on a PERM form after filing?

    (6) What is the business necessity requirement for foreign language under PERM?

    (7) Can unpaid experience be used to qualify for a job?

    (8) Which documents must be retained for five years and who must retain them?

    (9) How may special requirements be documented on the form?

    (10) Which details must be placed in the ads?

    Answers:

    (1) The Magic Language must go in Item 14. It must state, "Any suitable combination of education, training, or experience is acceptable."

    (2) An occupation is one defined by an SOC code. A job is a specific job offer under an SOC occupation code. Jobs may vary within the same code (French Chef, Traditional Cuisine vs. French Chef, Nouvelle Cuisine -- Different Jobs, but Same Occupation per SOC) -- (French Chef vs. Garde Manger -- Different Occupations because SOC codes are different).

    (3) The SVP is used for pre-PERM cases, and the O*Net is used for PERM, to determine normal requirements. However, the SVP continues to be used for PERM in parallel to determine minimums and maximums.

    (4) Under PERM, you must respond to DOL within 30 days. Response has to reach ETA Office on 30th Day. Under old system, 35 days to respond to an NOF or Denial, but response can be sent by certified mail on 35th day).

    (5) After filing electronically, it may be possible to make some corrections during an audit. If filed by mail, it may be possible to make correction while the application is pending. After a denial, it may be possible to make some corrections as part of Motion to Reconsider. Generally speaking, there is no longer any such thing as "Harmless Error." This means that corrections should be possible if DOL was at fault (like a glitch or problem with electronic entry), but not if the Employer was at fault.

    (6) Business Necessity for Foreign Language has changed! It is not the same as pre-PERM. The new business necessity standard for Foreign Language states that it may based on (a) Nature of the occupation, e.g., translator; (b) Need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English (by furnishing the number and proportion of clients, contractors or employees who can not communicate in English and/or a detailed plan to market products or services in a foreign country) AND (b) Detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.

    (7) Unpaid experience may be represented by training, instead of experience.

    (8) The regulation states, "Copies of applications for permanent employment certification filed with the Department of Labor and all supporting documentation must be retained by the employer for 5 years from the date of filing the Application for Permanent Employment Certification." The question here is how to interpret the words "supporting documentation." It appears that it is not necessary to keep resumes of U.S. Workers after a Final Determination is made.

    (9) Special requirements should be placed in Item H-14, however, sometimes they may be embedded in the job duties in Item H-11. Conversely, they must be clearly and prominently shown in Item K-a-9, K-b-9, or K-c-9 to prove that the alien is qualified.

    (10) The regulations only require the ads to have the name of the employer, instructions to send resumes to the employer, description of the vacancy specific enough to apprise US workers of the job opportunity, and the geographic area of employment.

    For more information about the workshops or to sign up click here.
  5. More about Substitution of Aliens

    by , 04-09-2007 at 05:24 AM (Joel Stewart on PERM Labor Certification)
    A commentator wrote: "So what will happen to old, unused, certified labor certs if this new rule goes into effect as proposed?"

    Joel Stewart's Response: The pre-PERM DOL regulations state that labor certifications are valid indefinitely. The new PERM regulations are silent on this point, but in the absence of any limitation, we must assume that PERM certifications are valid indefinitely as well. DOL seeks to rewrite the regulations to limit substitution and to provide for a limited period of validity. Consequently, unused labor certifications may go the way of pre-revolutionary Rubles. The regulations have not been published yet, but the fundamental issue in a labor certification determination is that the Secretary of Labor has made a finding that the employment of an alien in a particular job and in a particular place would not be harmful to US workers. The finding may be invalidated in case of fraud or misrepresentation under PERM and even for other reasons under PERM. DOL efforts to annul labor certifications might be seen as ultra vires, or one might make the argument that the new regulation should not be applied retroactively. The regulations have not yet been published, but we will look forward to input from our colleagues on these questions.
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