Joel Stewart on PERM Labor Certification

OIG Investigations of Fraud, Waste and Abuse

The office of the Inspector General of the United States Department of Labor maintains a site on the internet with interesting information about audits of DOL programs.

The site opens with the phrase, "Understanding the Audit Process in DOL," and identifies key issues, such as the selection, definition, and processing of audits. These are audits of the agency itself.

DOL explains that the purpose of audits is to learn how to administer future PERM cases based on mistakes made in the past by Employers.

DOL's priorities happily are program dollar value, and vulnerability to fraud, waste and abuse. In making these analyzes, DOL bears in mind statutes and regulations, sensitivity, newness or changed conditions, federal resources, results of prior audits, and congressional requests.

The term audit is defined to include not only an analysis of dollar value, but also compliance with laws, economy and efficiency of operations, as well as effectiveness in achieving program results.

In other words, not only does the DOL audit Employers and their PERM applications as part of the PERM rule, but it also audits itself, i.e., its efficiency an honesty in giving services to the public.

Under the heading, "Program Fraud," the OIG explains that it investigates Worker's Compensation, Foreign Labor Certification, Unemployment Insurance, the Workforce Investment Act and the Job Corps. Current news releases of wrong-doing may be found at http://www.oig.dol.gov/newsroomcurrent.htm .

The site's electronic newsletter contains an article about a senior attorney at ICE who received a bribe of $20,000.00 in connection with the issuance of a visa, as well as cases involving applications filed for certification without their authorization, IT companies that brought foreign workers into the US without real job opportunities available at the time of their arrival in this country, and misuse of DOL documents to obtain driver's licenses in Florida.

FOIA procedures are explained, since the agencies activities are discoverable under the Freedom of Information Act.

The site is interesting, informative, and sheds light on the overall function of the DOL, its efforts to police itself, and to police those who use its services.

The OIG, however, does not limit itself to investigation of fraud, but also wants to investigate allegations of waste and abuse (common characteristics of all immigration proceedings).

There is obviously a line to be drawn between an agency's interest in performing its job duties under the law and an agency's wasteful or abusive approach to that function.

Prior to PERM, labor certification applications took many years to be processed by DOL, through the SWA's and federal offices. Cases in certain states (California, NY, NJ) took up to five years. 

No doubt OIG audits of these backlogs contributed to the creation of the PERM rule in 2005, which was supposed to eliminate this problem, by streamlining labor certification processing with PERM, an acronym for "Program Review Electronic Management."

Nevertheless, PERM application processing time now exceed the anticipated processing time of several months, as announced in the PERM regulation, and cases of PERM applications audited by the Certifying Officer (as opposed to OIG audits of the agency itself) may place a PERM case spinning into a lengthy process require several years to be resolved. Such delays are similar to the delays suffered under the pre-PERM rule.

No doubt today's quagmire will someday be replaced by a "Super PERM" when computer technology develops to the point that DOL can process PERM applications at the speed of light.

PERM: Who Can File for What?

The PERM process varies according to the type of job for which the Employer is seeking certification.

1. There is a basic process described under 20 CFR 656.17 which is used for most PERM applications. Basic processes are filed with the DOL electronically or by mail.

2. College or university professors apply under 20 CFR  656.17 or 656.18. The latter is a special process which relies on the process of selection by the entity of higher education. 20 CFR 656.18 is the only type of recruitment in  which the Employer may seek the best qualified candidate, since the regular process under 20 CFR 656.17 does not allow the best candidate to be selected, but only the most minimally qualified. In addition to filing Form 9089, the application must be accompanied by documentation of the competitive recruitment process conducted by the University within the last 18 months. Because of the special documentation required, these applications are filed by mail with the DOL.

3. Occupations listed on Schedule A are precertified by the DOL. These includes Schedule A Group I (Nurses and Physical Therapists) and Schedule A Group II Aliens of exceptional ability in the Sciences or Arts and Aliens of Exceptional Ability in the Performing Arts. These applications (Form 9089) are filed together with an I-140 petition directly with the Department of Homeland Security by mail and not with DOL using the DOL's electronic filing process.

Note: Physical Therapists and Nurses may only file under 20 CFR 656.15 and not under the regular process 20 CFR 656.17, i.e., they may not use the regular process described under CFR 20 656.17.

4. If you happen to be filing for a sheepherder, you may file the necessary paperwork by mail, including documentation of employment as a sheepherder for at least 33 of the immediately preceding 36 months.

5. The role played by the National Office under PERM is now limited to correspondence and questions. Previous to PERM, the national office could receive applications for certification if they involved any special problems or handling requirements. Obviously the electronic filing procedures under PERM does not permit employers to send the applications by mail to the National Office.

6. Who may file a PERM application? An Employer is defined as "A person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States, or the authorized representative of such a person, association, firm or corporation. An employer must possess a valid Federal Employer Identification Number (FEIN). An "authorized representative" means an employee of the employer whose position or legal status authorizes the employee to act for the employer in labor certification matters. A labor certification can not be granted for an application for permanent employment certification filed on behalf of an independent contractor.

7. Notwithstanding this definition of an authorized agent to represent the Employe, i.e., to sign an application for an employer, this does not include "Agents" who are designated in writing to act on behalf of an alien or employer in connection with an application for labor certification. In these cases the "authorized representative" may use the services of an agent. The authorized representative is the employer, and the agent just receives correspondence from DOL regarding the application.

8. Who may not file a PERM application?  Persons who are temporarily in the United States, including but not limited to, foreign diplomats, intra-company transferees, students, and exchange visitors, visitors for business or pleasure, and representatives of foreign information mediate can not be employers for the purpose of obtaining a labor certification for permanent employment.

Second Preference without PERM

As we explained last week, 2nd preference applies not only to aliens with advanced diplomas, but also to aliens of exceptional ability, as defined by DHS regulations.

While an approved PERM case is normally required, aliens may also apply without a PERM approval under Schedule A. The regulations for Schedule A come from the Department of Labor, not from DHS.

Nothing much has changed since 1991 when Polly Webber wrote an excellent article for Immigration Briefings, "Strategies for Avoiding Labor Certification." As Polly instructed, the major methods for avoiding all or part of the labor certification process are the following:

1. Priority Workers (EB-1)

2. National Interest Waiver (EB-2)

3. Schedule A Group I or II (EB-2 or EB-3)

4. Special Immigrant (EB-4)

5. Employment Creation Immigrant Investor (EB-5)

At issue in today's Blog are applications under Schedule A. This schedule is maintained to include jobs that are pre-certified by the Department of Labor. To qualify, applicants must fill out the PERM form and attach it to the I-140 petition. DOL then determines if the I-140 petition may be approved, without further processing by DOL.

Under current DHS policy, applicants may apply for adjustment of status simultaneously with the filing of the I-140 and Schedule A PERM application. As a result, there is no delay to apply for adjustment of status. The other categories of employment visas must be processed through the DOL first. With current backlogs for PERM processing up to several years,  if an audit is required, simultaneous processing with Schedule A is an attractive alternative.

The DOL's schedule A list has always included Physical Therapists and Registered Nurses, and performing artists have now been added. Of great importance is the exceptional ability alien, who can present documentation of two out of seven categories of criteria.

In other words, if an applicant can meet the DHS requirements (discussed in last week's Blog) which are three out of seven criteria, and the DOL's Schedule A criteria, no PERM processing is required. The DOL criteria are the following:

1 Receipt of internationally recognized prizes or awards for excellence in the field;

2 Membership in international associations requiring outstanding achievements of their members, as judged by recognized international experts in the field or discipline;

3 Published material about the applicant in professional publications;

4. Proof of his or her participation as a judge of the work of others in the field;

5. Original scientific or scholarly research contributions of major significance;

6. Authorship of scientific or scholarly articles in international professional journals;

7. Display of work at artistic exhibitions in more than one country.

Admittedly, these seven criteria under the DOL standard are more difficult than the DHS criteria for Exceptional Ability. An alternative to Second Preference and Schedule A is offered by EB-1 Extraordinary Ability criteria.

Back in 1991, Polly wrote about a then on-going recession: "Given the recession, the anti-immigrant climate and the resulting efforts by the DOL to clamp down on labor certification cases, practitioners should seek ways to avoid all or part of the labor certification process whenever circumstances permit; for example, in priority worker cases, or through the national interest waiver, Schedule A, or the special handling provisions."

More about these anomalies next week!

PERM in the Fast Lane

This weekend while mapping out some PERM applications, I took into consideration the fact that the third preference is unavailable, and will probably not be available for years to come. The third preference is used by persons who have two years of experience, education or training, or a Bachelor's Degree. Then I considered a preference category other than the third preference.

PERM cases may be filed under second  preference, but only if the applicants (and their PERM cases) show that the aliens qualify as persons with advanced degrees or exceptional ability.

Most applicants understand how the advanced degree option works. It allows the alien to apply in the second preference, which has visas available for most countries, provided that the alien has a master's degree or a bachelor's degree plus five years of progressive experience.

However, the second preference is not limited to persons with advanced degrees. There is another prong for persons of exceptional ability. Exceptional ability is a half-way point between average and extraordinary. Extraordinary is a very high standard and applicants apply without a PERM application through the first preference. The second and third preference categories require a PERM application.  

Exceptional ability applications do not require an advanced degree. On the contrary, exceptional ability only requires the applicant to qualify under a series of conditions, and not by possessing an advanced degree. (Remember that the PERM process applies "minimum requirements" which are average requirements in the industry.) There are six conditions, and the applicant has to satisfy three of the six. The six conditions include a diploma or certificate from a course of study, 10 years of experience, a license, high salary, membership in a professional association or recognition of achievements. There is an additional condition which allows submission of appropriate evidence that does not fit in one of the other six conditions. The entire rule can be reviewed at www.uscis.govunder the "Laws and Regulations" tab. Look for "8 CFR" (DHS Regulations) and then for 204.5 "Petitions for Employment Based Immigrants."

To apply under second preference, the PERM application must show that the job requires at least three of the above mentioned conditions and that the applicant meets the stipulated requirements. A typical application might show the degree requirement (which need not be a bachelor's or advanced degree), extensive experience, and a license.

The difficulty in these cases might arise in the conflict  between the DHS and DOL regulations. For example, the Employer/Petitioner cannot put down many years experience if the government guidelines do not permit that for the occupation. This requires an analysis of the SVP requirement (Specific Vocational Preference).  As another example a high salary may have been offered to the alien in the past, but if a high salary will continue to be offered, it must be offered to US workers as well. 

The procedure to file for an alien of exceptional ability is to prepare an I-140, obtain an approved PERM labor certification, and attach documentary evidence to prove three or more of the conditions described above. 

Although an approved PERM application is normally required, there is a possibility to file a second preference petition without an approved PERM application under DOL regulations for "Schedule A." The result of this is that the application can be filed immediately with simultaneous processing by DHS for the I-140 Petition, I-485 Application for Adjustment of Status, I-765 Work Permit and I-131 Application for Travel Permit. I will discuss Schedule A and Simultaneous Processing in next week's blog.

About PERM Disbarment

The original PERM Rule included a provision for disbarment, which stated that disbarment would occur for purposes of PERM if a person was disbarred elsewhere, by another government organ, but PERM itself had no mechanism for disbarment.

 

The original Rule stated, "No person under suspension or disbarment from practice before any court or before the DHS or the United States Department of Justice's Executive Office for Immigration Review is permitted to act as an agent, representative or attorney for an employer and or alien under this part."

The original Rule went on to define the term Attorney. "Attorney means any person who is a member in good standing of the bar of the highest court of any state, possession, territory, or commonwealth of the United States, or the District of Columbia, and who is not under suspension or disbarment from practice before any court or before DHS or the United States Department of Justice's Executive Office for Immigration Review. Such a person is permitted to act as an agent, representative, or attorney for an employer and/or alien under this part.

 

Later, the PERM Rule was amended to include a new provision for disbarment by the PERM authorities. The PERM Rule now includes the following section on debarment:

 

"Debarment: No later than six years after the date of filing of the labor certification application that is the basis for the finding, or if such basis requires a pattern or practice as provided in paragraphs (f)(l)(iii), (iv) and (v) of this section, no later than six years after the date of filing of the last last labor certification application which constitutes a part of the pattern or practice, the Administrator, Office of Foreign Labor Certification, may issue to an employer, attorney or any combination thereof a Notice of Debarment from the permanent labor certification program for a reasonable period of no more than three years, based upon any action that was prohibited at the time the action occurred, upon determining the employer, attorney, or agent has participated in or facilitated one or more of the following: (i) The sale, barter, or purchase of permanent labor applications or certifications, or any other action prohibited under Sec. 656.12; (ii) The willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification; (iii) A pattern or practice of a failure to comply with the terms of the Form ETA 9089 or Form ETA 750; (iv) A pattern or practice of failure to comply in the audit process pursuant to Sec. 656.20; (v) A pattern or practice of failure to comply in the supervised recruitment process pursuant to Sec. 656.21; or (vi) Conduct resulting in a determination by a court, DHS, or the Department of State of fraud or willful misrepresentation involving a permanent labor certification application, as referenced in Sec. 656.31(e). (2) The Notice of Debarment shall be in writing, shall state the reason for the debarment finding, including a detailed explanation of how the employer, attorney or agent has participated in or facilitated one or more of the actions listed in paragraphs (f)(1)(i) through (v) of this section; shall state the start date and term of the debarment; and shall identify appeal opportunities under Sec. 656.26. The debarment shall take effect on the start date identified in the Notice of Debarment unless a request for review is filed within the time permitted by Sec. 656.26. DOL will notify DHS and the Department of State regarding any Notice of Debarment."

 

The regulation contains vague references that will need to be more clearly defined, however, for the time being there is only one debarment on the DOL debarment list, a hapless software company that conducted tests of its software reliability by filing hypothetical applications with DOL. This debarment does not appear to include the element of mens rea, since the company was just trying to practice with the system, and they perceived that the only way to do this was by filing test applications, or in other words, seasoning the soup until it was ready for consumption.

 

Note that the Debarment regulation applies to the entire PERM process and includes actions taken with the state workforce agencies as well as the federal department of labor.

 

BALCA on SWA Wage Determinations

BALCA has ruled that an employer may not substitute a self-generated wage determination for one properly determined by the State Workforce Agency. See King's Garden 1 Chinese Restaurant, Inc. 2008-PER-228, April 13, 2009.

It is a well-known fact that the SWA is supposed to issue the prevailing wage determination, however, in this case the Employer merely went to the FLC Wage Data Center Online Wage Library and used what it determined to be the appropriate prevailing wage.

 When the CO audited the case,the Employer was unable to provide the SWA Prevailing Wage Determination. BALCA noted that According to the regulations, "employer must file their applications or begin the recruitment....within the validity period specific by the SWA." The phrase "by the SWA"  gives rise to the inference that only the SWA can make the determination.

There are several reasons why an Employer's determination might differ from the SWA's determination, even if they both come from the same Online Wage Library.

First, the SWA assigns a wage level, 1-4. This requires a certain amount of interpretation and discretion, since the rules distinguishing wage level 1-4 are complex.

Second, the wage determination also decides on the O*Net Code, and some job descriptions overlap, giving rise to a possible difference of opinion, for example, whether a job is that of Market Research Analyst or Economist.

Third, the SWA determination is "official" and provides an appeal process if the Employer believes the SWA has made an incorrect decision.

A previous defect in the reference to the regulation has been corrected. Previously, the regulation stated as "...required by Sec. 656.17(d) or 656.21." These sections did not refer to regular processing but to specialized procedures for Schedule A and Supervised Recruitment. In fact, the regulation was corrected after Stakeholders discovered the error.

I note that the Employer may have made its own PWD based on prior experience with H-1B Prevailing Wage Determinations. In H-1B cases, the Employer may use the on-wage library itself and is not required to use the services of the SWA. The advantage to use the SWA in H-1B cases is that the determination by the SWA determination provides a "safe harbor" which cannot result in penalties or findings of wrongdoing. In the PERM process, the concept of an "optional SWA determination" does not exist.

Also on this blog, we have reported about problems with SWA determination forms and language which are not uniform but individualized in each state and territory. The result is that some SWA Prevailing Wage determinations, including the forms required to request the PWD, are ambiguous and confusing.

The DOL was expected to centralize Prevailing Wage Determinations in the Federal Office, but the change has not taken place yet.

How NOT to Predict Success in a PERM Case!

Many times employers ask what the chances are for an PERM application to be approved. The question is normal in the business world where percentage estimates for gain or loss are widely used in planning transactions.

While the question is normal per se, it belies ignorance of the mechanism of the PERM process. The answer to the question can only be expressed by different types of measurements, based on the regulations and legal standards involved in the search for a worker.

Due to current high levels of unemployment during the current world financial crisis, most employers can find job applicants, but may still be hard put to find qualified workers who are able, willing and available to work in specific job opportunities.

Let's look at the meaning of availability, willing, able, and qualified.

Availability may be an issue, because some workers who have lost their jobs may be looking for any work available for any length of time, however, they it should be expected that if they respond to a position advertised under PERM that they understand that the job opportunity is permanent in nature and not just a short term position during the recession. PERM positions by law may not be temporary in nature. Unless the position requires little or no experience or training, the employer is entitled to question the job applicant's intentions to occupy the position for more than a short time.

Willingness is another issue to examine. Many job seekers will express interest in a position, but will not actually accept the position if offered to them. Think of it like persons who go to a realtor to look at houses for sale. They may appear to be interested in numerous houses and go to visit them, but not necessarily with a checkbook and money in the bank to purchase a house on that specific occasion. Looking for work is a difficult process of self questioning and evaluation in which an individual challenges him or herself to create or change a life style through employment. An experienced employer should be able to tell if an applicant is serious about seeking employment. The best way, according to the Department of Labor (and I concur), is to offer the job to the applicant. If the position is available immediatley, the applicant will state if he or she is willing to accept the position and should not procrastinate.

Able is a requirement for PERM certification, but what does it mean?  A job applicant must be physically able to do the job, but there may be other problems like commuting distance, family obligations, school plans, licensing requirements, or health limitations. Some persons cannot work in a hot place, or a cold place, or in a place where fungus or other contaminants have been found. This actually happened to someone I know who worked in a court house, until fungus was found in the AC system, and could no longer work there.

Finally, on the issue of qualifications, this is a complex issue that requires the employer to make an objective decision about each job applicant. The requirements to perform the job are based on job functions which are described both in general and detailed terms in the O*Net. Some people look only at the generalized job description, and do not realize that the job functions listed under the generalized description are the meat of the matter. Applicants must be qualified to perform at least the key functions. If the position for a secretary is to type, prepare reports, answer the phone, and make coffee, it might be considered that ability to make coffee is not an important job requirement, but the other duties are important -- even answering the phone, i.e., skills in dealing with telephone inquiries, identifying the caller, taking accurate notes, and being understood -- and applicants must be qualified to do that, or easily trainable.

Taking all this into consideration, it should be clear that it is not possible to predict the outcome of a PERM case using a system of percentages, nor is it appropriate for an attorney to do so. However, a competent employer should be able to make judgments about conditions in the job market and availability of job applicants under the conditions described in the statute. They must be qualified, able, willing and available.

Update: How to Substitute a New Employer in a PERM Case

First, I would like to thank Christian S. Allen, Esq., who wrote an article on this topic for the PERM BOOK II. I have written a blog article about this topic before, however, since I was asked to speak about this on  an ILW Teleconference last week, I decided to add some new perspectives in today's Blog. As I will explain, although the PERM Rule does not permit substitutions of any kind, substitution of employers is sometimes possible at the DHS during the I-140 petition Process, and, of course, under AC-21 during the adjustment of status process.

The problem with the PERM Rule is that no changes are permitted to the Form 9089 during the processing of the case by DOL or to approved PERM Cases. Although some ministerial typographical errors have been permitted by BALCA, under the ruling in HealthAmerica, such changes may not include material matters such as name of alien or name of employer.

The rule permitting substitution of Employers at DHS has its roots in pre-PERM BALCA cases which recognize that justice is will served if substitution of employers is permitted under certain circumstances. BALCA had approved the substitution of an employer in the Jean-Pierre Karnos case 2002-INA-18, May 20, 2004, where the first employer died (an attorney) and his colleague, a solo practitioner who practiced law in the same office space, requested that he be substituted as Employer in the pending application for labor certification.

In a 1981 decision, Matter of Dial Repair Shop, 19 I & N Dec. 481 (Comm., 1981), the concept emerged that substitution may occur if the employer has purchased an existing business, merged with another company, or otherwise has evolved into a new form of ownership. The now-familiar conditions based on successor-in-interest doctrine are that the new employer must show that it assumed all of the rights, duties, obligations, and assets of the original employer and continues to operate the same type of business as the original employer.

The rule also appears in the USCIS Adjudicator's Field Manual (AFM) which states that "Successor in interest occurs when the prospective employer of an alien (and the entity that filed the certified labor certification application form) has undergone a change in ownership, such as an acquisition or merger, or some other form of change such as corporate restructuring or merger with another business entity, and the new or merged, or restructured entity assumes substantially all of the rights, duties, obligations and assets of the original entity."

There is of course a long line of adjudications, both published and anecdotal, about I-140 petition approvals for new employers involving everything from a complete corporate take-over of all assets and liabilities, to the somewhat more vague termination and rehire of the entire staff of an employer, without any transfer of physical assets at all. In fact, DHS has acknowledged that the meaning of the rule is that only the immigration-related obligations must be transferred, and not the corporation itself. Under this interpretation, a mere letter or other document memorializing the transfer of personnel with immigration cases pending would be justified under the successor in interest theory.

Keep in mind, of course, that no labor certification is valid, if the place of employment is in a different commuting area or SMSA (Standard Metropolitan Statistical Area than the original. This is so because the prevailing wage in the labor certification was calculated at the original place of intended employment, and the prevailing wage determination will not be valid in a new work area. Obviously, roving employees might present an exception to the requirement of same work area. The prevailing wage for roving employees would be the place where the employer's headquarters is located.

The principles that applied in the Jean-Pierre Karnos case to permit employer substitution are the following: (1) Same job opportunity, (2) Same area of intended employment, (3) Same job duties, and (4) Same Wages. It seems that these same principles would support a request for substitution of Employer at BALCA, along with a document proving successor in interest status, at least for employment and immigration purposes.

The implication of existing substitution law is that the PERM Law may have gone too far in prohibiting any changes to the PERM Form, since the mandate of the statute is to determine if US workers are available and whether the employment of an alien worker will be adverse to working conditions for US workers. The Karnos criteria above works well because it relates to the mandate of the statute, which concerns the job opportunity and not the identity of the person who will fill that job opportunity.

A job opportunity may cease to exist, if the parties no longer have the intention to maintain an employment relationship. This would occur if the original employer stops functioning. During the gap between the old employment relationship and the new, it might be argued that the labor certification was no longer valid, especially if the employer and the alien worker no longer intended to continue with the immigration case.

Can Aliens Appeal Denials of PERM Applications?

Our colleagues, Gary Endelman and Cyrus Mehta, wrote a comprehensive article addressing appeal issues in PERM cases. David Pakula, Michael Piston, and Sam Udani were also cited for their extensive input.

The article, called "What If I Don't Agree?: Review of a Denial of a Labor Certification in Federal Court," begins by opining the paradox that while the alien bears the burden of proof to establish eligibility for permanent residence under the Immigration and Nationality Act, the PERM regulation does not permit the alien to file an appeal of denial to BALCA or pay the Employer's attorney to file an appeal on behalf of the Employer.

The authors then go on to discuss whether a PERM application can be appealed directly to Federal District Court under the theory that the APA permits a cause of action to be brought by any "person" who has suffered a legal wrong or who has been adversely affected or aggrieved by agency action.

Thus it should be the APA at 5 U.S.C. 702 and not the PERM Rule at 20 CFR Sec. 656.24(e)(6)which is controlling in a situation where the alien, or any other person, wishes to bring an action for denial of a PERM application in Federal Court instead of appealing to BALCA.

The leading case is Darby v. Cisneros, 509 U.S. 137, 144-54, 125 L. Ed. 2d 113, 113 S. Ct. 2539 (1993). The authors maintain that exhaustion of administrative remedies by appealing to BALCA is not required if the following criteria exist: (1) Federal Review has been brought pursuant to the APA; (2) There is no statute that mandates an administrative appeal; (3) Either there is no regulation that mandates an administrative appeal, or if there is a regulation that mandates an administrative appeal, it also does not stay the agency decision pending administrative appeal; and (4) The adverse agency decision to be challenged is final for purposes of the APA.

The authors explain that based on these criteria, it "may be possible for an employer to bypass BALCA and seek review in federal court as there is no mandatory requirement in Sec. 656.26(a).

The fly in the ointment however is the fact that 20 CFR Sec. 656.24(d)(e)(3) provides that if a PERM application is denied, the Certifying Officer must advise that "failure to request review within 30 days of the date of the determination constitutes a failure to exhaust administrative remedies.

Under Darby, appeal may be brought under the APA if there is no regulation that mandates an administrative appeal, however, the language in the PERM Rule does not specifically mandate an administrative appeal. The Agency may have intended that to be the rule, but it did not express its intention. The authors point out that, "It is the agency's regulations, not its intentions, which are controlling."

The article then reviews more recent decisions following Darby and offers the warning that although the cases are not wholly supportive of access to federal court by aliens or others wishing to bypass appeals to BALCA, there is a body of law supporting the argument that jurisdiction should lie under the APA, even if aliens are the aggrieved parties.

In fact, the authors argue that the alien's right to appeal directly to federal courts under Darby is more clear for the following reasons: (1) 20 CFR 656.26 does not require an alien to go to BALCA; (2) In the labor certification context, the alien is not even informed of a right to appeal. This positive assertions relies on the premise that a decision called Ramirez v. Reich, 156 F.3d 1273 (DC Cir. 1998) was wrongly decided. In Ramirez, Darby was not mentioned. The Ramirez case only challenged the decision of the Certifying Officer as being arbitrary and capricious. The Authors suggest that the result might have been different, if the suit had challenged the validity of the PERM Regulation.

The authors conclude that due to the lack of clarity in the PERM rule, "the silence of those most directly responsible for the creation and administration of the labor certification process suggests, indeed commands, that the alien's APA rights not only be respected but nurtured and encouraged."

The phrase "Prevailing Wage" is a Term of Art & a Wage Calculation

When people think of the prevailing wage, they usually have a specific dollar amount in mind, where the prevailing wage is a concept expressed in digits, not in words. However, the Prevailing Wage is also a Term of Art with a specific meaning within the context described in the PERM rule. In other words, the prevailing wage has two ways of being expressed. The first way is a calculation based on data on the internet resulting in a calculation in dollars and cents, and the other way is a legal term of art described in the PERM Regulation and encompassing the legal meaning of the phrase "Prevailing Wage" set forth therein.

Which of these interpretations may be used in the PERM process?

Recently a colleague asked us to assist to prepare a Motion to Reconsider where the meaning of the term "Prevailing Wage" was at issue. The Employer had obtained a prevailing wage determination from the SWA, but noted that it was required to put the "Prevailing Wage" on the Notice and therefore wrote the phrase "Prevailing Wage" on the form instead of the dollar amount obtained from the SWA.

Our first reaction was that the Employer had no legal argument, because he had not put the actual prevailing wage on the form.  However, as our colleague wanted to request a reconsideration or appeal if possible, we decided to examine the issue in more detail.

Here's the argument we came up with:

The Final Determination states: The Notice of Filing does not list the wage offered."

As authority for this denial reason, the Final Determination cites:  "Per 20 CFR 656.10(d)(4), the notice 'must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form)."

The denial reason is patently incorrect. As the Notice of Job Availability documents, the salary is plainly stated as "Prevailing Wage." It cannot be said that the Notice of Filing does not list the wage offered, because the wage offered is written clearly.  It is the prevailing wage, an exact dollar amount that is a matter of public record.

There is no basis for denial in the authority cited by the Certifying Officer. The authority requires that the notice state the rate of pay for the job opportunity. The Notice of Filing in the instant case states the rate of pay. Where is the violation of the regulation?  In fact, the regulation calls for the rate of pay to be announced in the notice.

The employer has complied with that regulation by stating the rate of pay shall be the "prevailing wage." There is nothing in the regulation that requires numerals to appear on the notice of filing for salary to be offered.  The regulation calls for the rate of pay" to be stated.  In the instant case, the rate of pay is clearly stated as "prevailing wage." There is no violation of the regulations here."

Obviously all things have their place in the heavenly scheme of things, and there is certainly a place for each expression of the prevailing wage: for the prevailing wage to be stated in a dollar amount or by a legal term of art. Since the dollar amount is a matter of public record, it is logical that one could refer to it using the phrase "prevailing wage" instead of the actual dollar amount......

What do you think?