Joel Stewart on PERM Labor Certification
, 07-03-2015 at 03:29 PM (4852 Views)
In the United States, federal agencies have broad discretionary power to create informal but legally binding standards for administrative matters. In the context of immigration, american employers and foreign workers must deal with at least three federal agencies: (1) U.S. Department of Labor OFLC (Office of Foreign Labor Certification) that administers the PERM labor certification program; (2) U.S. Citizenship and Immigration Services, the agency responsible to adjudicate I-140 Immigrant petitions; and (3) Department of State, which is responsible for the control and issuance of immigrant visas abroad.
Frequently cited is the famous Supreme Court decision Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), holding that courts should defer to agency interpretations of statutes unless the interpretations are unreasonable.
In essence, the Supreme Court recognized that because administrative agencies have special expertise, they may create ad hoc policies that have the force of law. Chevron USA also gives these agencies the right to bypass the more transparent law-making procedure that involves public participation and to adopt new policies behind closed doors that the public must follow.
The PERM Rule itself is not a hastily adopted statement of policy but the result of an official law-making process that was fully vetted and published in the Federal Register. PERM spells out in broad terms how employers may obtain DOL’s approval for foreign workers to accept job offers in the US.
The requirement to obtain alien labor certification does not apply to those who seek to enter in other categories, such as family based petitions, investors, multi-national employees, outstanding researchers and professors, persons with extraordinary or exceptional ability, national interest workers, religious worker immigrants, green card lottery winners or refugees.
Like the PERM Rule itself, published forms such as ETA 9141 (prevailing wage request) and ETA 9089 (PERM application) have also been promulgated through the legal process of publishing in the Federal Register, but there are many ambiguities and uncertainties that DOL clarifies by means of policies decided internally.
To begin with, there are Frequently Asked Questions (FAQ’s). Though not considered laws, these questions (and answers) provide guidance that employers need to know to apply under the PERM rule. An example is the requirement to document a foreign worker’s license or special skills to perform job duties. While the PERM form 9089 has a place to designate these as special job requirements (usually in H-14), due to an apparent oversight in the creation of the form there is no place to record the fact that the foreign worker has acquired the license or skill and no instruction where or how to write it on the form.
In 2013, DOL began denying PERM applications that did not show licensing qualifications in the foreign worker’s employment history. When Employers complained that there was no instruction for this on the form, DOL issued an FAQ advising employers to place licenses and special skills in Item K, a space used to describe work experience.
Templates have also become very popular to enforce agency directives. In PERM practice, Employers receive DOL templates during audits. The templates create a series of questions and demands to produce documents. Employers must provide answers. Some questions in the templates may purport to create additional legal requirements.
For example, after final determination,employers and attorneys must sign PERM applications to attest to the fact that foreign workers have not paid for any part of the PERM process, including recruitment costs or attorney fees; however, DOL uses the audit template to require the production of a separate affidavit from each party. The reason may be that DOL believes that additional sworn statements are necessary to underscore the prohibition against payment of fees by foreign workers.
DOL also has stakeholder meetings where issues are placed on agendas and discussions are memorialized in minutes. The meetings provide an opportunity for ongoing discussions about questions that raise difficult, new issues. Although unofficial, the minutes provide important guidance as to the direction of DOL’s changing policies. Stakeholder minutes usually predate FAQs and therefore enable Employers to recognize changing DOL policies and respond accordingly.
DOL also creates memoranda, consisting of opinions written by one or more DOL official and subsequently “followed” as if they were laws. An example is a memorandum on policy guidance written by Barbara Ann Farmer, "Field Memorandum: Number 48-94," issued more than 20 years ago, even before the PERM Rule was enacted in 2005, and which survives as a source of precedent to this day, which includes an instruction on the subject of roving employees. Although only intended to be a tool to achieve greater efficiency, the memorandum has been quoted for several decades as an example of DOL policy and is now regarded as a legal authority by the DOL and employers alike.
Correspondence between stakeholders and DOL officials is another source of policy-turned law. Attorneys sometimes write letters or verbal questions posing inquiries about how specific matters should be resolved.
Even casual comments occurring during question and answer sessions at conferences may be introduced as hearsay remarks by those were present and later followed as required guidance.
An interesting question is the extent to which state law may influence federal PERM practice. States have local labor and employment laws. Employers must always comply with these laws, even if they are requesting federal certification for foreign workers. An example might be a PERM application that provides for telecommuting from a home office located in a community where home offices are not permitted by local law.
State Workforce Agencies (SWA’s) are authorized and required by federal law to process job orders for employers in the State in which the job duties will be performed. The job orders must run for at least 30 days. However, beyond that broad, federal requirement, employers must comply with the rules of each SWA. Procedures to pre-register, questionnaires used to complete 30-day job orders, information required to be written in the job order, pop-up menus in the SWA on-line templates, terminology used in the job orders, and local practice affect every aspect of job order placement and may challenge employers who need to follow federal requirements.
Employers must accurately describe wage offers using federal standards, including wage ranges, prevailing and actual wage. However, some SWA job order templates use different terms to enter wage information, such as entry level salary, wage ranges, bonuses, and other descriptors that may prevent employers from putting the federally mandated wage information clearly in the context of job orders.
When controversies arise and PERM applications are denied, employers may appeal unfavorable decisions to the Board of Alien Labor Certification Appeals (BALCA). Curiously, BALCA decisions are not binding on future cases, and panels of administrative law judges sometimes rule at odds with each other when given similar fact patterns.
The challenge facing Employers is to distinguish among laws, policies, industry standards, and other norms, not only to assess their order of importance to define the correct, legal course of action, but also to anticipate changes or interpretations that may occur during the lengthy period of PERM processing.
The art of PERM practice is to know which policies and laws are important and how they interact with each other, a skill involving knowledge, experience, and a sixth sense!