Joel Stewart on PERM Labor Certification

PERM Skills Analysis

An interesting article appeared in the internet regarding transferable skills. An analysis of transferable skills may be used to determine what positions a person may fill if they are seeking a similar position with alternate skills.

The PERM Rule provides that Employers must be prepared to provide some training for workers who seek to fill a new and different job. Applying the Kellogg Rule, workers may qualify for positions by a suitable combination of education, training or experience.

A transferable skills analysis looks at the work activities a person has performed in previous jobs, along with the objects upon which the work activities were performed. Data developed along these lines may then be used to identify a set of occupations that a worker should be able to perform.

Employers are encouraged to make assessment results for reasoning, math and language skills, as well as aptitude tests.

The definition of transferable skills used by the Social Security Administration states that "A person is considered to have skills that can be used in other jobs, when the skilled or semiskilled work activities (that person) did in past work can be used to meet the requirements of skilled or semiskilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupational significant work activities among different jabs.

Ability to transfer skills is documented if the same or lesser degree of skill is required (Specific Vocational Preparation), the same or similar tools and machines are used (Work Fields), and the same or similar raw materials, products, processes or services are involved (Materials, Product, Subject Matter and Services).

In PERM, one might use the transferable skills analysis to determine whether alternative occupations are reasonable, or whether a worker  might be considered qualified to perform the job duties. Variations among jobs are normal and it is possible le that a job applicant can be found qualified with a different set of skills if they are transferable.

One of the criticisms often leveled at Employers in PERM processing is that their assessment of job applicants is too subjective. Employers interviewing job applicants can use a skill transfer analysis as a standard which objective and nob subjective.

The internet is replete with articles on tbe subject of transferable skills analysis including studies and statistics to back up conclusions.

The O*Net includes detailed information about occupations and jobs, including the skills required to perform job functions. This author recommends that evaluations of job applicants be based on the O*Net but that a transferable skills analysis be used to consider whether job applicants are qualified in the PERM recruitment process.

BALCA Puts Kellogg and PERM Back in the News

In a recent cases, BALCA issued an interesting decision based on a Kelogg analysis.

In Agma Systems, LLC, 2009-PER-132, the Employer refused to put the "Magic Language" on the PERM application. The language, "Employer will accept any suitable combination of education, training or experience," is required when the alien is working for the employer and only qualifies because of alternative requirements.

The history of the Kellogg quandry rose out of the DOL's displeasure with overly-broad or inappropriate alternative requirements that seemed tailored to the alien. In PERM, which seeks to streamline the application process and reduce it to its lowest, common denominators, the whole issue of Kellogg seemed to disappear when the PERM Rule was issued, simply requiring Employers to put the Magic Language on the PERM Form.

In the first few years after PERM (since March, 2005), Employers ran afoul of the rule, when they failed to put the language on the form, partly because there was no place on the form to put the language, and partly because they did not understand the rule which did not appear in the instructions on the form. As a result, DOL has now included a special place to put the Magic Language on the new PERM form 9089, although the form has not yet been placed into use.

Getting back to more recent developments, today's case of interest is Agma Systems, LLC, 2009-PER-132, August 6, 2009. This case goes right to the heart of the matter. The Employer questioned the appropriateness of the language and challenged its precise meaning. In other words, according to the Employer, the Magic Language is very imprecise, and defines only in vague, overly broad terms, the minimum requirements of the employer, as if any combination of education, training or experience might be acceptable.

In Agma,  the Employer actually stated that the Magic Language is wishy-washy and therefore inappropriate. For those who do not know the meaning of "wishy-washy," a quick lookup in Google produces the following definition:  "Thin and watery, as tea or soup; insipid. Lacking in strength of character or purpose; ineffective." Indeed, veteran practitioners have probably wondered from time to time about the exact meaning of this phrase.

The Employer, being a computer systems company, applied pragmatism to the situation and argued that the requirements, although stated in the alternative, were so fundamental and basic to the profession, that a generalized, vague statement about "any combination of education, training or experience" would be inaccurate and inappropriate to put on the form.

The Board reviewed the arguments of the employer and after reflecting on the famous Kellogg decision (1994-INA-465), February 2, 1998), stated that, "the essence of that decision was to prevent an employer from tailoring alternative requirements, which were substantially different from the primary job requirements, to the alien's specific qualifications."

Finding the main requirements and the alternative requirements "nearly identical," the Board held that the Employer's application did not violate the regulations by failing to include the Kellogg language, and therefore was reversed.

Interview with David Ware: PERM in time of Recession?

David Ware, a well known immigration lawyer and lecturer, will be joining our ILW teleconference on Wednesday, October 28. It starts at 2:00 p.m. and is the first of three teleconferences entitled "PERM for Experts."

David will kick off the conference by talking about issues stemming from the current economic crisis.  posed some questions to David, and he was kind enough to give us a preview on his talk.

1. What are the pros and cons of filing a PERM application in times of high unemployment, i.e., should PERM be temporarily suspended?

 

David: Certain markets have high levels of available US workers, so the Employer has to consider whether a PERM application should be filed based on its knowledge of the local market.

 

2. What happens if the company is cutting back on salaries, and the wage for a labor certification has already been processed and filed with the 9089?

 

David: The wage stated in the application is an offer only, which must only be paid at the time the beneficiary becomes a permanent resident. The labor certification can go forward, but the employer must be advised that at some point, the beneficiary will have to be paid the required salary, or the labor certification and/or I 140 will have to be withdrawn.

 

3. What happens in the above, if the PERM is approved, but the I-140 has not yet been filed or is still pending?

 

David: The same salary must be offered in the I-140, but need not paid until permanent residency is approved. If this becomes impossible, then as stated before, the labor certification and/or I 140 must be withdrawn.

 

4. What happens if the I-140 is approved and the alien will not be paid the same salary stipulated, even though the salary is higher than the prevailing wage?

 

David: I would advise the employer to withdraw it.

 

5. Given the long backlog for 3rd preference, should applications for 3rd preference aliens continue to be filed, and, if so, with what caveats to the employer and alien?

 

David: We do them all the time. Most third preference candidates do not qualify for an exemption for labor certification. However,  3 yr H extensions (once the I-140 is approved) are available which can now be premium processed in case H renewal time rolls around.

 

6. What if the alien has a temporary visa and is transferred to another part of the country on job offer will be mo. May the PERM application, if already filed, continue to be processed?

 

David: Where there is possibility of transfer, unless the application provides for undetermined locations within the US, the employee must be transferred back to original work-site once permanent residency is approved.

 

7. Can the Employer sign the attestations on the PERM case (that there is a job opportunity and that he has enough money to pay the alien) with annual receipts dropping, demand for his product dropping, and bleak outlook to continue in business.

 

David: Yes, if he plans to keep the alien on as long as he is able to pay the salary.

 

8. What difference is there, if any, if the Employer has begun some kind of bankruptcy proceedings?

 

David: Bankruptcy doesn’t necessarily liquidate all assets but rather gives the employer “breathing space” with creditors. I think it might usually be a problem when presenting financials at the I 140 stage, but you never know; if given bankruptcy protection, it is conceivable the employer might not be showing a loss on financials.

 

For more up-to-date information on this and other topics, tune in to our teleconference on Wednesday, October 28th! David will be joined by Rohit Turkhud and Christian Allen, who will also discuss how to get a PERM application started using the new PERM application form.

 

 

BALCA Decides PERM Prevailing Wage Cases

I just returned from several PERM workshops and conferences, one in Puerto Rico and one in Florida,  and decided to write about some recent BALCA decisions we discussed. The Board was quiet about prevailing wage issues for some time after PERM was introduced, but recently some new cases have been decided, giving us some insight into how the process for determining prevailing wages works and how disputes might be resolved.

In one case, Garmin International, Inc., 2008-PER-171, decided March 17, 2009, BALCA reviewed the Dietrich Private Survey which provided five wage levels for the occupation. The SWA had to crosswalk one of those five levels to the DOL's four-level system to accomodate the Employer's job offer of Aviation Softwear and Systems Engineer with two years experience, but no educational requirement. and no supervision. The Employer and the SWA, while agreeing on the validity of the Dietrich Survey, disagreed on the assignment of the correct wage level. The SWA stated that the employer's job most closely matched Dietrich Zone Five, while Dietrich the Employer insisted that Dietrich WageThree was correct. The Board said it agreed with the Employer that Dietrich level Five was inappropriate because the job offer had no supervisory duties, but also determined that the job functions were too sophisticated for Dietrich Zone Three. In conclusion, the Board found Dietrich Zone Four to be correct and ordered the CO to modify the wage to coincide with Dietrich Zone Four.

In Reed Elsevier, Inc., 2008-PER-201, April 13, 2009, the Board explains in simple language, how the prevailing wage analysis should work by using the procedure used in the DOL Guidance Letter, issued as an FAQ on May 9, 2005. The Guidance Letter explains that there are four wage levels. These levels should not be confused with the Five SVP Job Zone levels.  Every job begins with at least one point, i.e., with one wage level. Although the total number of points and levels are only "four," an additional point may be added above the first point for extra experience, education, special skills and supervisory responsibilities. For most jobs, normal education requirements are not counted, only greater than normal. Experience is normal if it is at the low end of the SVP range for the occupation. Thus, a job requiring two to four years experience would not add a point for two years experience required, but would add an extra point if four years experience were required. If a Bachelor's degree were normal for the job, no extra points would be added. But if the Employer required a Master's degree for that same job, an extra point would be added. If supervisory duties or special requirements like languages were required, a point would also be added. In this case, the SWA and the CO had counted the Master's Degree and experience in the aggregate, instead of adding only one extra point for the Master's, the four years required to acquire the Master's were added to one year experience to reach a total of five years of preparation time. Since the job opportunity of Industrial Engineer belonged to Job Zone Four, and a Bachelor's Degree was normal for the job, the CO had mistakenly determined a Wage Level Four to require two extra points, one because of the Master's Degree and one because the Master's degree was being counted as four years of preparation time. The correct analysis was to apply one point to start with and only one additional point for the Master's Degree. The correct wage would then be Wage Level Two, not Wage Level Four.

In Jesus Covenant Church, 2008 PER-200, September 14, 2000,  the Employer typed $16.20 in the 30 day job order instead of $16.48. The issue was whether he difference of 28 cents per hour would have produced more US Workers. The majority found that the error was clearly a mistake and does not lead to the conclusion that the job opportunity was not clearly open to US workers. Judge Vittone dissented, stating that Employer can never know whether potential applicants viewing the SWA job order would have been more likely to apply if they knew the actual wage offer was higher than the advertised rate.

In A Fresh Perspective, Inc., 2008-PER-203, March 31, 2009, the Employer downloaded a prevailing wage form from the State of California, "Arnold Schwarzenegger being listed as Governor," but filed it in Rhode Island, the local of the job site. From that point everything went downhill, including the fact that the Employer failed to provide evidence that the prevailing wage was properly issued. The Board upheld denial of the application. The case demonstrates the confusion that can occur in prevailing wage determinations which are handled by each of the states, territories and Puerto Rico, each in its own individual manner.

In C & C Consulting Engineers, 2008-INA-35, August 6, 2009, the Employer filed a pre-PERM applicaton with a prevailing wage offer less 5%. The SWA and the CO failed to take into consideration that only PERM cases must contain a prevailing wage that is at least 100% of the PW. The former rule allowed 95% of the PW The Board agreed with the Employer and vacated the denial. The case demonstrates that the CO's office does not properly review PW determinations by SWAs, even where the PW determinations are clearly erroneous as a matter of black letter law.

The cases demonstrate that some SWAs do not know how to interpret the May 9, 2005, Guidance Letter. This may be due to the fact that the Guidance Letter is very complicated and difficult to understand. In addition the Guidance Letter contains conflicting standards to determine the prevailing wage. Future Blog entries will discuss prevailing wage cases as they are determined by BALCA.

PERM FAQ's: The Most Frequently Asked!

Here are some PERM FAQ's that are the most frequent of the frequent.

1. Can applications be filed by FAX? No, only on-line or by (certified) mail.
2. Is the on-line system hard to use? No. According to the DOL it's customer-friendly.
3. What are the advantages of on-line filing? The mail-in system requires DOL employees to enter the information for you into the electronic system, thus resulting in errors and delays.
4. Can the Employer file more than one application for the the same alien at the same time? The answer to this is "yes" or "no," depending on whether the two job offers are the same.
5. When does an approved PERM get signed if it was submitted electronically and unsigned?  It must be signed "immediately" by the employer, alien, and preparer.
6. What happened to the pre-PERM Rule?  It still exists, but only for applications filed before March 28, 2005.
7. May the alien or attorney register the Employer in the on-line system? Absolutely not.
8. What happened to the applications that were send to the now-defunct Backlog Elimination Center? Most were approved or denied, but some were lost.
9. What can I do if my application was lost at the BEC? Reconstruct the application with documentary evidence.
10. What is the deadline for filing special recruiting provision for college and university professors?  18 months since the selection of the foreign worker.
11. What role does an attorney or agent play?  Primarily to receive correspondence from DOL on behalf of the employer.
12. How long does it take to prepare and file a PERM application? According to the Office of Management and Budget, 75 minutes is sufficient for the entire process.
13. Which PERM applications can be withdrawn? Any PERM applications may be withdrawn, including approved applications, however, if the application is under audit, the withdrawal does not stop the audit from continuing (the audit and the withdrawal are treated as two separate events).
14. How long must the employer publish the notice of filing in the employer's in-house media? Either 10 days, or in accordance with the Employer's normal procedures, whichever is longer.
15. Must the Notice of Filing contain the Employer's name? Yes!
16. Must the Notice of Filing contain the wage offer? Yes, but not if the job is for a college or university teacher selected a competitive selection and recruitment process.
17. May the Employer use one process for multiple positions?  Yes, i.e., one Notice of Filing, one recruitment procedure, but separate 9089's must be filed, one for each alien.
18. Where must the Notice of Filing be posted for roving employees? At the work site(s) where the employees will work; or at the work sites of all its current employees; or, if no work sites exist, there is no job opportunity and the PERM application cannot be filed.
19. May a PERM application be filed for an employee who will work at home? Yes.
20. May a foreign employer filed a PERM application? Yes.
21. How is professional defined for selection of recruitment procedure? Use Appendix A to the PERM preamble. Appendix A is reprinted in the May 9, 2005, FAW on Prevailing Wage. Unfortunately, the DOL appended Appendix A to the FAW and gave it a new name, Appendix D.
22. Does the alien need a Bachelor's Degree to qualify for a professional position? No.
23. How fast can a PERM application be prepared and filed from beginning to end? 61 days.
24. What happens it the SWA makes a mistake in the 30 day job order? The PERM application will be denied, because the Employer is responsible for the job order. The SWA only assists.
25. What level of detail is required in an ad?  Very little. Example: French Chef, Nouvelle Cuisine,  Name of Employer, Address of Employer (or FAX or PO Box). Wages and details of job are not required. If FAX or PO Box is used, then ad must state general area of job opportunity, i.e., "Brooklyn".
26. Can jobs requiring experience be advertised through an on-campus placement office? Yes!previously DOL said No, but it decided that on-campus is OK for experienced jobs to be advertised.
27. If the company's name was changed after recruitment occurred, what should the Employer do? Just provide documentation if audited by DOL, and otherwise file changes with the I-140.
28. What about the Magic Language? Has to be included in H-14 on the old form 9089, but special questions exist on the new form 9089. Note that the Magic Language is only required if the alien is working for the employer and qualifies for the job by virtue of alternative requirements ("Employer will consider any suitable combination of education, experience or training").
29. Must the Employer contact all job applicants "matched" by the SWA's job bank? Yes.
30. How does the Prevailing Wage validity period work?  The application for PERM must be filed before the final date OR recruitment must be begun AFTER the initial date.
31. Can the same prevailing wage determination be used for multiple applications? Yes.
32. Is a wage range permitted?  Yes, as long as the bottom of the range is no less than the prevailing wage rate.
33. Must a prevailing wage determination be obtained for Schedule A workers as well as college and university teachers?  Yes.
34. Can Employer submit alternative evidence in the absence of primary evidence in response to an audit request?  Yes, sometimes.
35. Can the alien pay the Employer? No, absolutely not.
36. When does a PERM approval expire? 180 days!

7th Circuit: PERM Approval Valid Only180 Days

The United States Court of Appeals for the Seventh Circuit issued a decision on August 18, 2009, Durable Manufacturing Co., v. United States Department of Labor, No. 08-4122, regarding the requirement that labor certification approvals be filed with DHS within 180 days.

Prior to the enactment of the PERM Rule, labor certification applications were valid "indefinitely." After the PERM Rule came into effect, DOL issued an amendment stating that all labor certifications approved by DOL, whether before or after the PERM Rule, would only be valid to file with DHS within 180 days.

The Plaintiffs in this suit filed on behalf of applications that were approved either prior to or after the Amended PERM.  The Plaintiffs argued that the rule limiting the validity to 180 days was beyond the scope of the Agency's statutory authority.

In its analysis, the Court began by examining the text and purpose of the statue to determine whether the Amendment falls within the scope of authority. Unexpectedly, It noted that that pre-PERM Rule did not apply the statute correctly because it did not take into consideration that the Secretary of Labor had to make a determination of sufficient workers at the time of application for a visa. The Court decided that the new Amendment correctly interprets the statute by limiting the validity to 180 days. The holding states, "In sum, we conclude that the promulgation of 656.30(b) was within the DOL's statutory authority because it comports with the textual mandate of Sec. 1182(a)(5)(A)(i)(I) for DOL to ascertain the sufficiency of workers at the time an application for a visa is made, and it furthers one of the congressional purposes behind the labor certification requirement."

The Court then considered the plaintiffs' alternate argument, i.e., that the regulation cannot be applied retroactively to applications which had already been approved prior to the enactment of the Amendment. Proceeding with the two-fold analysis enunciated in a precedent case,  Landgraf v. USI Film Products, 511 U.S. 244 (1994), where the court stated that the inquiry is whether Congress expressly conferred power on the agency to promulgate rules with retroactive effect and, if so, whether the agency clearly intended for the rule to have retroactive effect, and, if not, whether the regulation has retroactive effect.

The Court found that it was "unaware of any express statutory provision inciating congressional approval of retroactive rulemaking by DOL in regard to labor certifications. Since the statute did not authorize retroactive rulemaking, the Amendment would be impermissible, but only if it had retroactive effect.

Then the Court went on to find that the Amendment did not evidence retroactive effect. It reasoned that a "law is not retroacive merely because it is applied to conduct before the law was passed or upsets expectations based in prior law....Rather, a law has retroactive effect if it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." The Court held that the Amendmentdid not operate retroactively by limiting validity to 180 days.

Parenthetically and in response to the Plaintiffs' argument that the original rule created an indefinite validity period, the Court analyzed the meaning of the word "indefinitely" and determined that "indefinitely" does not mean forever but only for a period of time which has no exact limits, indeterminate  in extent or amount; not clearly fixed."

In view of the above, the judgment of the lower court was affirmed.

BALCA Holds PERM Remands Permissible

The controversy on PERM remands has gone full circle.

In the first PERM case, Healthamerica, 2006-PER-1, 2006, the Board of Alien Labor Certification Appeals held that the PERM Rule does not permit remands.

The reasons given were that there was nothing in the regulations to permit Remands and in the Preamble to the PERM Rule DOL had stated that there was no need for remands. In Healthamerica the Board needed to remand, because the error made by the employer was nothing more than a typographical mistake in the date for the second ad placed by the Employer. The Employer had placed the ads on the correct dates, but merely wrote the wrong date on the PERM form.

The DOL was enforcing a zero tolerance policy, whereby any error, however harmless and de minimis, would result in a denial. DOL had stated that the electronic, computerized review procedures of PERM did not permit any corrections to forms made by Employers.

The Board found that a zero tolerance policy might be acceptable, but would have to be accompanied by adequate warnings on the website and user-friendly tools to prevent employers from making unnecessary mistakes. In fact, in the post-Healthamerica world, warnings have appeared and the electronic filing program will not permit an error in the dates for Sunday ads which must be seven days apart.

The basis of the problem was FAQ Number 5 that stated that corrections cannot be made to an application after submission. Although the Board found that DOL's FAQ Number 5 to be arbitrary and capricious and not supported by any regulatory language, regulatory history or decisional law, the Board did not want to create a right for BALCA to remand Healthamerica's application to the CO for correction of the typographical error. Instead, the Board decided to "return the application to the Certifying Officer for further processing."

The distinction between a remand and a return for processing was purely linguistic. In actual fact, BALCA remanded Healthamerica, however, the Board revisited this issue in S. Chae Holding, Inc., 7 Car Wash, 2009-PER-135, March 2009.

The issue in this case was whether the Employer had filed the application for PERM within the 180 permissible time period. The CO agreed that the issue had been resolved, but the application had been denied and was pending at BALCA.

The Board stated that in Healthamerica the decision did not bar BALCA from remanding a case. Instead, Healthamerica only stated that the pre-PERM rule authorizing remands from BALCA had been removed in the PERM regulation. The Board went on to state that in Healthamerica the issue had been finessed so that an application could be returned to the CO for further processing.

The Board went on and stated, "We choose not to continue with the artificial resolution of the "remand" issue employed in the Healthamerica case because it is patently obvious that a distinction between a return of an application for further processing and a remand does not exist.

Although BALCA cannot rewrite a regulation, the language in the preamble is not a regulation, but only a reflection of an agency's reasoning. Under the Chevron case, Chevron v. Natural Resources Defense Council, Inc. 467 U.S. 837, 843-44 (1984), agencies should be given deference to interpret their own rules.

However, since the DOL's interpretation of the PERM Rule in FAQ 5 and in the Preamble to the PERM Rule, to wit, that no remands would ever be necessary or permitted, is untenable, the Board concluded, "....this panel finds that the actual text of the PERM regulations does not bar remands, that the rationale of the preamble to the PERM regulations in regard to remands is not entitled to Chevron deference, and that this panel will exercise the power to remand where the circumstances so dictate."

The order held that the case was remanded for further proceedings consistent with the decision.

States Receive Federal Grants to Process PERM Applications

Have you ever wondered about the separation between State and Federal Governments in the context of PERM applications?

PERM is a federal law and a federal program that occurs in the federal environment. However, the States are called upon to provide services for in-state PERM processing. The states assist employers to place 30-day job orders as part of the recruitment effort and to prepare prevailing wage determinations for job offers.

The Federal Government also requires State assistance for H-1, H-2 and E-3 visas. Each SWA has an Annual Plan that must be submitted with required information to obtain Federal funds to support the work required for the Federal PERM and visa programs.

The Office of Foreign Labor Certification publishes a document called Foreign Labor Certification Grant Guidance (TEGL) and the States must agree to be bound by and comply with the terms and agreements of the TEGL.

To obtain grant money, SWA's have to submit proposals identifying how program funds would best be utilized and by splitting the grant allocation between agricultural and non-agricultural activities. The SWAs must also inform the National Office via written communication of the proposed program split that will be used to allocate funds between agricultural and non-agricultural activities.

Wagner-Peyser Funding allocations for 2009 were estimated at $15,129,000 consistent with federal legislation. Of this amount, $95,000 was retained at the National Office for discretionary activities. The remaining disbursement was $15,034,000.

SWA Responsibilities include the following:

(1) Certification and Assurances. Regulations require recipients of SWA grants to submit various standard certifications and assurances.

(2) Utilize Mandated Forms for Inter-Agency Communications. SWAs must utilize the proper format to ensure uniform communications. These forms include, but may not be limited to, the following: Form ETA-232 (Domestic Agricultural In-Season Wage Report); Form ETA-232A (Wage Survey Interview Record); Other ETA forms that contain a valid Office of Management and Budget (OMB) control number and expiration date; ETA-9130(Financial Status Report on a quarterly basis); ETA-9127 (Quarterly Activity report).

Funding for states varied, for example, from a low of $66,295 for Puerto Rico and $70,715 for Alaska to a high of $1,364,539 for New York and 2,415,253 for California. Other states include Florida, $582,209; Illinois $420,659; Massachusetts $766,566; New Jersey $599,434; Ohio, $202,939; Virginia, $842,627, and Texas $936,362.

The SWAs are generally required to provide data about the number of job orders for H-2A temporary labor certification applications, H-2B temporary non-agricultural labor certification, total number of prevailing wages for agricultural activities and non-agricultural activities, broken down into PERM, H-1B, H-2B, H-1B1, and E-3.

Please note that since the SWAs must use Federal OMB forms, which are approved by the Office of Management and Budgetand are valid until the expiration date listed on the forms, modification of such forms or the use of forms created by or customized by the SWAs is illegal.

Since the SWA's are acting as agents of the Federal Government, Employers should always check communications from SWAs to see that they are in compliance with Federal laws and the conditions of the Wagner-Peyser funding grants.

PERM Workshop in San Juan, Puerto Rico on September 24, 2009

I will be in San Juan on September 24 giving an all-day workshop to the AILA group in Puerto Rico. The syllabus of the workshop is the following:

PERM

Workshop

September 25, 2009

Session 1: Mechanics of a PERM Case

• Preparation of PERM: Understanding O"Net ABC's: Job Titles, Duties, & Occupations; Understanding Job Zones & SVP.
• Prevailing wage: Competency Levels, WageRanges, Educational Ratings, Schedule D Professionals, Filing at SWA’s & Appeals to DOL.
• Problems Filing  PERM by Mail or Electronically, How to Avoid
• How to Technical Errors on Form 9089

Session 2: Recruitment Process

• Regular Recruitment,: Notice of Filing, SWA Job Orders, and Tips for Advertising, Recruitment Requirements for Professional Jobs,  Recruitment Campaign from in 61 to 180 Days
• Ethical Issues: Review of Resumes, Contacting and Interviewing US Workers
• Recruitment Reports, Preparing the Record File and Supporting Documents.
• Schedule A: Nurses, Physical Therapists, Exceptional Workers in the Sciences or Arts, & Performing Artists

Session 3: Substantive Issues with PERM

• Defining Actual Minimum Requirements, Foreign Languages, Combination of Occupations, Alternative Requirements, Combinations of Education, Experience, and Training; Layoffs, Alien Influence and Control.
• Who May Be an Employer, Definition of US Worker,
• 2^nd  Preference Issues: Advanced Degree v. Exceptional Ability
• 3^rd Preference Issues: Bachelor’s Degree, Post-Secondary Education, Training, and Paid or Unpaid Work Experience.

Session 4: Reconsideration, Appeals to BALCA, & Federal Court Litigation

• Audit Letters and Final Determinations,
• Motions to Reconsider to CO and Requests for Appeal to BALCA, Challenging

• DOL ’s  Zero Tolerance Policy

BALCA Case Summaries Freedom of Information Act Requests Exhausting Administrative Review, Alien as Plaintiff, Update on Federal Court Decisions

For further information, contact karen.scalley@mdgslaw.com of the local SJ Chapter.

 

Hope to see some of my friends and blog readers in San Juan!

PERM Definition: "Closely Held Corporation"

The instructions to Form 9089 state that "Closely Held Corporations are corporations that have relatively few shareholdersrs and whose shares are not generally traded in the securities market."

The question that appears on Form 9089 is whether the employer is a closely held corporation, partnership or sole proprietorship in which the alien has an ownership interest.The Employer is required to respond 'Yes" or "No."

A "Yes" answer raises the inference (or presumption) that the Employer may not have a bona fide job offer for a U.S. worker but prefers to place an insider in the position. The DOL will certainly tag such an application for an audit and inquire into the Employer's relationship to the alien who has an ownership interest.

The May 6, 2002, publication of the proposed PERM rule stated that if the Employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners, and the aline, the employer in the even of an audit must provide the following documentation: (1) A copy of the articles of incorporation, (2) A list of all corporate officers and shareholders of the corporation, their titles and positions in the corporate structure, and a description of their relationship to each other and to the alien beneficiary; (3) The financial history of the corporation, including the total investment in the corporation and the amount of investment of each corporate officer, incorporator and the alien beneficiary; and (4) the name of the corporate official with primary responsibility for interviewing and hiring applicants for positions within the
organization and the name(s) of the corporate official(s) having control or influence over hiring decisions involving the position for which labor certification is sought.

The final rule simply states that Closely Held Corporations are those that have few shareholders and whose shares are not generally traded in the securities market.

Recently I received an inquiry from an Employer who had answered "No" to the question, based on his understanding of the term "Closely Held Corporation." He stated that the alien owned only 15% of the company and that there were about 10 shareholders.

I advised him that he should obtain an opinion from a corporate lawyer whether his company was closely held or not. While there is some lack of precision in the definition, an incorrect answer could bring charges of fraud or misrepresentation.

The answer would seem to turn on how many shareholders are "few" and an interpretation of the phrase "not generally traded in the securities market."

One internet site specializing in taxes states that the corporation is closely held if it has five or less shareholders and that if one of the shareholders wants to sell some or all of his/her shares, the sale must take place with one of the other existing shareholders, since no sale of shares can take place.

Employers should obviously obtain a legal opinion before answering "No" to this question and keep the legal opinion in their PERM Record File.