Joel Stewart on PERM Labor Certification
, 10-25-2014 at 05:33 PM (5315 Views)
I recently held a PERM discussion at the AILA Central Florida Annual Chapter Conference in Clearwater, Florida. Pradeek Susheelan, from Atlanta, Georgia, and Jennifer Roeper, from Tampa, Florida, joined me and we came up with an interesting update on PERM issues. The following is the outline of our presentation, not the presentation itself.
AILA Clearwater 2014 Annual Conference
by Joel Stewart, Pradeek Susheelan and Jennifer Roeper
- Who has the burden of proof?
- INA 212(a)(5) Ultimate burden belongs to the Secretary of Labor who must grant certification unless he finds that the Employer has not followed the regulations, that qualified workers responded to the recruitment or that the working conditions (wage offer) is not sufficient. The employer has a lesser burden to follow the regulations set forth in the PERM Rule.
- Regulation: appears ultra vires, quotes INA “Whoever seeks an immigration benefit” bears the burden, but this section of the INA that relates to immigration petitions has been misleadingly construed to apply to the labor certification process.
- Supervised Recruitment section provides the CO with undefined discretion to determine recruitment requirements, ultra vires because the burden may be unfairly weighted against the employer.
- Employer goes forward and follows the regulations. Denials usually based on failure to follow the regulations. Employer has burden to prove each regulatory requirement (proper answers on forms, recruitment requirements, etc.) Harmless Error was written in the pre-PERM regulation but eliminated when PERM was introduced. Now DOL Policy is Zero Tolerance. Initially, Matter of Health America provided some relief and seemed to be reinforced by Matter of Sharp Image Gaming in 2011. However, Matter of Health America was overturned by Matter of Sushi Shogun in May of 2013. BALCA stated in Matter of Sushi Shogan, that the revised regulations (July 16, 2007) do not permit any modifications to the PERM form after initial filing.
- Assuming all regulations followed to a “T”, does employer have to prove that there is not one single U.S. worker anywhere who can fill the job? No, the job search is limited to the limits of the recruitment requirements described in the PERM Reg, except that Supervised Recruitment is not limited in the regulation.
- A U.S worker is defined is any of the six following groups of workers: a U.S Citizen, U.S National, Permanent Resident, Temporary Resident (under 8 USC 1160 (a), 1161(a), or 1255a(a)(1), Refugee or Asylee.
- How to determine if an applicant is a US Worker? Who has the burden to prove this? There are different methods used by employers to inquire. Employers that fear antidiscrimination suits offer the job to qualified workers at time of interview and only request employment authorization documentation through the I-9 procedure on the first day of employment. Others request verification before or during the interviewing process. There is no specific legislation, regulation, policy or guidance on this issue. Debates ensue whether to advertise work authorization. Permanent Work Authorization, Work Authorized, and questions about Sponsorships are not necessarily 100% coextensive with the definition of US Worker.
- Who can be an Employer? Anyone except an NIV or illegal business entity (violates local zoning, statutorily defective corporation, etc. Can be a foreign entity, but must have FEIN & place to which US workers can be referred. There may be practical difficulties that need to be overcome in the case of an unestablished or foreign employer, as the DOL may request various verification documents such as Tax returns etc. Any family or corporate control issue may taint the process. A recent FAQ in relation to Question C.9 on the ETA Form 9089 states “familial relationship including any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term "marriage" will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.” Direct or indirect control of the selection process during PERM recruitment may result in a finding that there is no bona fide job offer to US workers by the Employer).
- Before Beginning a new PERM case:
- Obtain the Alien’s history, experience letters, updated resume, etc. (Don’t rely on H1B file).
- Get Yates Memo compliant on ability to pay (net profit, net current assets or salary paid to the alien must meet wage offer. Alternatively, consider a totality of the circumstances approach. Get an organizational Chart from the employer to determine how many employees are in the company, whether they are contract workers of direct employees, full-time or part-time, and their relationship to each other and to the alien.
- PERM approval from DOL required for Preference 2 & 3 but not for NIW’s and Schedule A waivers.
- Which occupations are waived under Schedule A? Nurses and Physiotherapists under Schedule A group I. Under schedule A group II Aliens of Exceptional Ability in the arts science and performing arts.
- How to obtain a National Interest Waiver? 3 Requirements of NYSDOT (Intrinsic merit, national in scope and proof that alien is so uniquely qualified that a test of the job market is not necessary).
- 2nd Preference, how to qualify? 1. Job must requires a qualified 2nd preference alien and alien must be qualified.
- Degreed Aliens: Master’s or Bachelor’s (bachelor’s must be from a single source) Plus Five years of Progressive Exp.
- Non-Degreed Exceptional Aliens (3 out of six qualifying requirements).
- 3rd Preference – Job Requires a qualified 3rd preference alien and alien must be qualified:
- Professionals: Bachelor’s must be from a Single Source.
- Skilled Workers: AA, or part of Bachelor, or 2 yrs of training or experience or school post secondary.
- Other workers
- For 2nd and 3rd preference degree equivalencies requirements and standards, see Pradeek Susheelan’s paper on equivalencies in the conference materials.
- Start planning each PERM by preparing a rough draft of Form 9141 Prevailing Wage and observe the following factors:
- Minimum Requirements: Education, Training, Experience – SVP, O*net, Occupational Outlook Handbook, Industry Standards.
- Special Requirements, Languages, Licenses, Skills, Supervision & Travel.
A recent FAQ states “When the employer lists specific skills and other requirements for the job opportunity in Section H, Question 14, the employer must also demonstrate on the ETA Form 9089 that the foreign worker possesses those skills and requirements. In order to do so, the employer should list separately in Section K all the foreign worker's qualifications, such as certificates, licenses, professional coursework, or other credentials that meet the requirements to perform the job opportunity listed in Section H, if those qualifications have not already been explicitly identified under information about the jobs held in the past three years. …."; Question Numbers 1-8 requesting information about the job can be left blank.”
The employer is also required to list in Section K, as noted on the Form ETA 9089, "any other experience that qualifies the foreign worker for the job opportunity for which the employer is seeking certification." Accordingly, an employer seeking certification should list in Section K any training experience possessed by the foreign worker that qualifies the foreign worker for the job opportunity, regardless of how the training was secured. The source of the training should also be identified.
- Alternate Requirements: Do SVP’s have to be equal to Principal Requirements? (No) Instead, use Kellogg Test. Beware of Combinations of Job Duties, Experience or Education Gained on the Job, as these conditions may be permissible but are always problematic and may result in an audit or denial.
- Audits: Employer must submit documentation requested by CO, but documentation must have been in Employer’s record file at time that PERM application was filed. Employer cannot submit supplemental documentation later in process. Supervised Recruitment raises serious questions of abuse of discretion, since the CO appears to have unbridled ability to dictate unreasonable and excessive, additional recruitment. Employer’s should not comply with unreasonable recruitment requests that exceed those outlined in the other parts of the PERM Rule. In pre-PERM employers used RIR, and if the RIR was denied, the application went back to the beginning to be readvertised with the same recruitment requirements. The advertising and recruitment requirements were the same at all times – three ads, 30 days in the job bank, and a 10-day posting. In Supervised Recruitment, there are no guidelines that the CO is required to follow. Request for Reconsideration cannot include additional documentation, beyond that which was submitted with the audit, but if there is an error attributable to the PERM software or an error on the part of the CO, the Employer can ask for review in the Government Error Queue, process which normally takes 2-4 weeks. Other requests for reconsideration take much longer, as do appeals. Appeals to BALCA cannot be accompanied by new documentation that should have been submitted at the time of the audit, but fundamental fairness and discrepancies in the record may be addressed by submitting new documentation. Employers should file FOIA’s with BALCA to determine what documents are in the record file. Beware of bold statements by DOL that the job applicants referred to the Employer (by any source) were US Workers. Normally the record files contain no evidence that the applicants were US workers and therefore entitled to the job opportunity.