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Joel Stewart on PERM Labor Certification

Special PERM Problems Are Subject of December 15 Teleconference

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On December 16, we will have the third and last teleconference in our series, "PERM for Experts."


As in the first two conferences, we have an all-star cast, and I guarantee a lively and provocative discussion. For PERM lovers, it doesn't get any better than this!


First, we'll take a fresh look at restrictive requirements. Where are we nearly five years after PERM was introduced?  What issues are active? Which are not?


Restrictive requirements is a catch-all phrase that refers to a set of regulatory requirements, including the following: Actual Minimum Requirements, Special Requirements, Foreign Languages, Combination of Occupations, Alternative Requirements.


We'll be updating all these issues and see where we stand with Kellogg. At least one employer recently argued against the Kellogg Magic Language.  He said it was "silly" and refused to put it in Box H-14 (or anywhere else) and BALCA agreed. This just goes to prove that when you think you can't, sometimes you can.


Our long-term friend and everyone's favorite raconteur, Nathan Waxman, will step up to the plate to field the panel's questions and challenges on restrictive requirements. Nathan will be joined in the conference by Christine LaBrie and Michael Piston, both very heavy hitters in their fields. Chrstine is a PERM person par excellence, and Michael is a legend in litigation.


The Anti-Fraud Rule in all its ugliness will be an important topic during the teleconference. Is the rule prohibiting attorney fees unconstitutionally vague? Overreaching? Is it legal? If not, why not?


And what about audits? What is the scope of a PERM audit? What evidence can he provided during an audit? Can new documents be brought into the record for the first time in response to an audit?


Final Determinations are an important exercise in interpretation. There are often important deficiencies and defects in Final Determinations that have to be identified. Is the FD stated in conclusory language?  Who has the burden of proof? How much deference may be given to an agency's unfounded findings? What kind of evidence is "substantial?"


What if you get a denial? What is the interplay and dynamics of Motions to Reconsider and Requests for Appeal ? What advantages are there to request reconsider instead of an appeal? And what are some of the major pitfalls in drafting reconsiderations and appeals?


We'll be covering a complete update of BALCA decisions. There are interesting new developments, important for all practitioners. Question to be answered include, "Whatever happened to the Zero Tolerance Policy? " "Is Harmless Error alive or dead?" "Were the founding fathers correct when they said that no remands are needed or permitted under PERM?" 


Finally we'll talk about federal court litigation. According to one well known member of the panel, it's easier than you think!

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