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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 11:27 AM by JStewart
Please email your letters to firstname.lastname@example.org
Letters to Editor:
Hello ILW Team Members:
I have been a loyal follower if ILW since the 80's. You people are on the ball and you are consistent! I value all your efforts.
I don't moan and groan. Because, our industry defies common sense. So, one has to do their best with a broken down system.
However, today, I am so frustrated with the Dept of Labor Prevailing Wage Unit.
In the 70's one could obtain a PWD in 5 to 7 days.
As of today, I have a PWD Request still in process for a "Pre-School Teacher". I filed it on 08/28/2016. today's date is: 12/09/2016.
I have sent emails to the Dept. All I get back is, an email that states "first in, first served" .
I would love some feed back from anybody? I am sure there are many more practitioners out there going through this "Travesty".
On December 9, 2016, a bipartisan group of Senators introduced the Bridge Act which would protect 740,000 DACA recipients from deportation and allow them to continue working and studying in the United States for the next 3 years.
Like DACA, the bill does not provide a path to green cards for Dreamers. Instead, the bill would grant them “provisional protected presence” in the US. They would be allowed to remain in the US, renew their EAD work permits and, in some circumstances, qualify for Advance Parole international travel permits.
Since President-Elect Trump has vowed to repeal President Obama’s executive orders, the bill, if enacted, would protect Dreamers from deportation for another 3 years unless they commit a deportable offense.
The bill would also tighten the confidentiality provisions in the law. DACA requires applicants to reveal their addresses and other personal information. The bill would prohibit the government from using this information to try to deport DACA recipients or their parents.
Although the bill is sponsored by a bipartisan group of Democratic and Republican Senators, it is unclear whether it has enough support to pass the Republican-controlled Senate and the House of Representatives.
The introduction of the Bridge Act is expected to put pressure on President-Elect Trump to work out a solution to the immigration status of the Dreamers.
Trump has been equivocal about how he intends to treat the Dreamers.
On one hand, he has pledged to repeal DACA. However, in a recent interview with Time magazine, he stated:
“We’re going to work something out that’s going to make people happy and proud. But that’s a very tough situation. They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”
by Chris Musillo
The Department of State has just issued the January 2017 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2017. This blog post analyzes this month's Visa Bulletin.
January 2017 Visa Bulletin
Final Action Dates
Applications with these dates may be approved for their Green Card (Permanent Residency card).
MU Law Analysis
All Other: The EB-2 has been current for many years. The EB-3 progression continues. For Consular processing cases an August 2016 date is effectively Current.
China: The China EB-2 date moved up about one month. The China EB-3 date progressed three months. The China EB-3 continues to have a more favorable date than EB-2, as a result of many Chinese EB-3 workers "upgrading" their applications to EB-2.
India: EB-2 India had another impressive progression from last month, moving forward two months. EB-3 stayed the same unfortunately.
Mexico: Mirrors All Other in all aspects.
Philippines: EB-3 moved ahead by another seven weeks. The Philippine EB-3 number essentially cleaned out all 2010 EB-3 visas and half of the 2011 EB-2 visas in just four months. This is what we have expected. (Our note from September 2016: "This is consistent with internal MU Law analysis which sees this category progressing into 2013 by the Summer of 2017.").
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Via Syracuse University's TRAC Immigration:
"The outcome for asylum seekers has become increasingly dependent upon the identity of the immigration judge assigned to hear their case. While judge-to-judge decision disparities have long existed, a detailed comparison of asylum decisions handed down by judges sitting on the same Immigration Court bench showed that differences in judge denial rates have significantly increased during the last six years. Nationally, the average decision disparity in asylum cases worsened by 27 percent.
The median level of asylum decision disparity that asylum seekers face is now over 56 percentage points. That is, the assignment of the judge for the typical asylum seeker could alter the odds of receiving asylum by this magnitude. For example, while the specific ranges differed by court, the typical asylum seeker might have only a 15 percent chance of being granted asylum all the way up to a 71 percent chance depending on the particular judge to whom their case is assigned.
Range in Judge Asylum Denial Rates
in the Ten Immigration Courts with Largest Disparities
During this same period, the court has become increasingly challenged by a rising backlog of cases, along with administrative pressure to expedite proceedings. While the evidence does not establish a definitive link between production pressures and increasing judge-to-judge decision disparities, as discussed further below, other administrative courts facing management pressures to reduce a backlog have brought about increases in decision disparity."
Click here for the entire report.