Joel Stewart on PERM Labor Certification

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.

File PERM on Time Despite Problems with On-Line Registration

A recent BALCA decision illustrates the problems that some Employers have registering on-line to use the electronic filing system. Sometimes it just doesn't work! Efforts to correct errors or bugs by e-mailing DOL, writing letters, or calling do not always bring results.

PERM applications have to be filed within 180 days of the first date that recruitment is begun. According to DOL's Zero tolerance policy, the 181st day will not do. Absolutely no errors are permitted.

The entire PERM process may hypoethticaly completed in 61 days in states where the SWA does not create unusual delays to issue prevailing wage determinations. The minimum time for Notice and Recruitment requires 30 days, and there is a 30 day waiting period. Hence, on the 61'st day Employers should be able to file their applications.

Unfortunately, real life applications just take much longer than that, and the 61 day minimum period often stretches out to four or five months, and soon it will bebthe 180th day. If the Employer has not been successful to register on-line, the application may not be successfully filed as planned.

What to do?  File late?

In the matter of Art O Frame, BALCA 2009-PER-150, the Employer did the wrong thing by not filing the application until after the 180 day period. The Employer blamed it on DOL, a rasonable argument, but if the registration system does not work, it's the Employer's fault, not DOL's fault.

Here is a solution to the problem, if it should almost happen to you.

Prepare a paper application, get it signed by the parties, and place it in a courier envelope ready to send on the 179th day. Continue to prepare the electronic application.

As the 180th day approaches,  and the employer has still been unable to register on-line, you will be glad you have a paper one ready to go.

Now, either on the 179th day, or earlier if you want to be more prudent, you send the PERM application to DOL, but continue to try to register on-line. If the electronic filing finally works, for example, at 11:59 on the 179th day, then you may push the "send " button and file the application electronically.

Of course you cannot file two applications, and you already filed one in paper.

Solution? Withdraw one of the applications, preferably the paper application, and continue with the electronic filing.

What are the advantages of filing electronically anyway....?

There seem to be two. First, the paper applications are keyed in by DOL personnel, and if any errors occur, the Employer will be held responsible, and proving the mistake was DOL's fault may result in audits and a delay of several years. Second, paper applications go into a separate queue, waiting to be keyed in, thus adding extra processing time.

In the Matter of Art O Frame, the Employer was late, due to problems with the on-line registration process, but the made the mistake of placing all his PERM eggs in one electronic basket.

 

 

Comments on PERM Stakeholders Conference

These meetings are held at various times during the year, during which attorneys and organizations can present questions to DOL staff regarding the PERM process.

During a recent meeting, at issue was the method for determining Job Zones for particular SOC coded occupational classifications and the factors to be considered in determining what the Job Zone should be for an occupation.

The question was no doubt prompted by the fact that some of the Job Zone determinations are "off the wall" and one wonders where in the world they came from.

The response to the stakeholders provides me with a sense of "deja vu". It was many years ago that I went to North Carolina to visit Mr. Stanley Rose and his team. They were responsible for creating the job descriptions in the old Dictionary of Occupational Titles. They should me some intake sheets with data gathered from Employers. However, there were very few, and they did not seem to correspond to the more than 10,000 jobs in the DOT. Although Mr. Rose was very kind and hospitable, my impression was that while they do calculate some of them many had simply been guesstimated.

Could that be the case with SOC Job Zones?

Is that wrong? Well, Mr. Rose underscored the fact that in the preamble to the DOT it states that the findings in the DOT are not intended to be used by government agencies to create legal responsibilities

Oh, well, the handbook is available at www.onetcenter.org/reports/JobZoneProcedure.html. Enjoy!

Another topic was the reevaluation of occupations, to upgrade or downgrade as the need may be. However, it seems funny (strange) that so many occupations have been downgraded, and so few upgraded. Stakeholders who have been around for more than five years have no doubt been shocked to see what happened to some of the job zone levels of yesteryear. Instead of requiring the same or more preparation time, they now require less. I would think the opposite, that in an increasingly more technical society, jobs would require more training time than before.

Or is this just a reflection of America's failing leadership in the world?

One report I read states that thirty million adults in the U.S. do not have the skills to perform even the most basic tasks such as adding numbers on a bank slip, identifying a place on a map, or reading directions for taking a medication. Furthermore, 11 million Americans are totally illiterate in English. So, I guess the O*Net really is an accurate reflection of educational expectations in the U.S.

On the other hand, the O*Net is modern and in step with changing mores. Note that a new section of "green" occupations will be added.

Meanwhile on the topic of SVP which has created much misery for PERM Stakeholders, the DOL admits that it is not widely utilized anymore, except that PERM still uses SVP and nobody knows why.

While Nannies are listed on the O*Net, there is no salary listed for this position. The SWA's have control of prevailing wage, so questions regarding PW need to be directed to the State agencies. Don't forget the saga of the lost nannies is a long and complex story (Nannies have popped in and out of the database with regularity!). The idea is that for a long time, the government did not consider them to be skilled workers. In response to complaints, nannies were brought back to live, but now with no clear wage guidance!

The best advice to employers who are advised that the proposed minimum requirements (SVP) or wages are too low for a PERM case is to obtain independent documentation of same. The documentation would be presented after an audit. This will, of course, result in a monumental delay in processing the PERM application, but at least the employers will get to have their "day in court."

 

 

Alien Work Experience on PERM Form 9089

On Form 9089, Item K on page 7 states, "List all jobs the alien has held during the past 3 years. Also list any other experience that qualifies the alien for the job opportunity for which the employer is seeking certification."

The instructions clearly mean the following:

(a) List all jobs (employment) during the last three years, immediately preceding the filing of the form;

(b) List any other experience (i.e., work experience or training) even if gained more than three years before the filing of the form.

Unfortunately, some preparers do not fully understand the instructions for Form 9089. Over the years, many labor certification cases have come across my desk, and I have seen variations on the theme:

(a) Cases where employers only wrote down experience gained during the last three years, to the exclusion of experience gained more than three years before the filing of the form. In such cases, the preparers did not read or fully understand the second part of the instruction advising experience gained any time in the past.

(b) Cases where employers wrote down experience gained more than three years before the filing of the form as if it had been gained during the last three years. In such cases, the preparers misunderstood the instruction, believing that experienced gained more than three years ago should be written on the form as if it had been gained during the three years before filing the form. In such cases, the dates are in error, but the experience is genuine.

(c) Cases where preparers excluded important experience or training because it was gained more than three years before the filing of the form. In such cases, the preparer may have believed that experience should not be put on the form or did need not be put on the form if it was gained more than three years before the filing of the form.

The information on the form should be used by the DOL to determine whether the alien appears qualified and whether the qualifications were gained before or after beginning work for the Employer. The DOL does not normally approve cases where aliens have gained experience with the Employer, while working for the employer, because it is not fair to US workers, who have not been granted the same opportunity to be trained by the Employer.

In the past, it has been common or even customary for Employer's to list the alien's qualifications on the labor certification form, and if the alien had more qualifications than required to establish minimum qualifications, Employers have sometimes omitted additional experience or training.

One of the reasons for the omission may be the difficulty in documenting experience or training gained some time ago. Another reason may be that the preparer documented the employer's minimum experience requirement during the last three years and saw no need to document additional experience or training gained more than three years before the filing of the form.

Unfortunately, some preparers have committed an error of omission by omitting important experience or training from the form due to any of the reasons stated above.

The remedy for such an error is to obtain clear and convincing documentation of the experience or training and submit it with the PERM form to DHS, along with the I-140 Petition, or in response to an Request for Evidence or Notice of Intend to Deny. The evidence may also be submitted on appeal, in the form evidence for consideration de novo.

The real issue is not whether an error was made on the form but whether the alien is qualified for the position and did not violate the regulations by gaining the experience with the employer. Such errors are normally not intentional misrepresentation, nor is the unintentional omission a form of material misrepresentation. 

More difficult cases are those where the alien is qualified based on prior experience or training, but the preparer put the wrong dates for the alien's employment or training history, thinking that the dates had to be dates during the past three years, and not at any time in the past.

Although it seems totally illogical, I have reviewed cases where preparers entered the alien's experience correctly, but with the wrong dates, thinking that they were simply following the instructions on the form.  If the alien is qualified, and the dates on the form are incorrect for any reason, the error in the dates does not change the fact that the alien is qualified.

In such cases, employers and aliens may sign the form, believing that the preparer has properly prepared it without realizing that the dates are not correct. If the alien is qualified, whether gaining experience in the last three years or more than three years ago, it cannot be said that the error is material. It is just an error.

We are now seeing reports of I-140 petitions filed with DHS and denied where the preparer has placed the alien's experience on the form for the last three years, but has omitted additional experience beyond the last three years because it is not fully set forth on the form.

These I-140 petitions should be approvable by DHS, if the alien convincingly proves that he or she is qualified, even though the qualifications were gained more than three years prior to the filing of the form and were omitted from the form.

The qualifications may be in the form of training or work experience. In the case of training, there is no place on the 9089 to put an alien's prior training except to gerrymander the information into Part J into fields reserved especially to list the alien's prior education.

In such cases, DHS examiners may think that the experience or training was not placed on the form because it does not exist. 

To rebut such a finding, the employer sshould provided conclusive evidence that the alien is qualified. Such evidence could include multiple information from all places of employment, copies of pay receipts or tax returns, entries in official "work books," affidavits from reliable affiants, and certificates or diplomas accompanying the work development.

For legal arguments to document alien qualifications, one must turn to the regulations. A petition for employment-based immigrants must be accompanied by any required document from the U.S. Department of Labor, such as a labor certification, and other required supporting documentation. 8 C.F.R. Sec. 204.5(a). The initial evidence must include "evidence relating to qualifying experience or training...and shall be in the form of letter(s) from current or former employer(s) or trainer(s) and shall include the name, address, and title of the writer, and a specific description of the duties performed by the alien or of the training received." 8 C.F.R. Sec. 204.5(g(l). The regulation allows that if "such evidence is unavailable, other documentation relating to the alien's experience or training will be considered." Id.

DHS denials of petitions with incomplete information usually cite Matter of Izummi, 21 I&N dec. 169 (Assoc. Comm. 1998), "a petitioner must establish eligibility at the time of filing; a petition cannot be approved at a future date after the petitioner becomes eligible under a new set of facts" and Matter of Katigbak, 14 I&N Dec. 45, 49 (Comm. 1971), "a petitioner may not make material changes to a petition that has already been filed in an effort to make an apparently deficient petition conform to Service requirements." With that elaboration, the DHS usually concludes that "it cannot be determined that the petitioner has met the required burden of proof" and denies the petitions

It is important to remember that the AAO reviews denials of employment based petitions on a de novo basis, pursuant to Second and Ninth Circuit Court of Appeals decisions (See Dor v. INS,891 F.2d 997, 1002, n. 9 (2d Cir. 1989); Spencer Enterprises Inc. v. US, 229 F. Supp.2d 1025, 1043 (E.D. Cal. 2001), aff.'d. 345 F.3d 683 (9th Cir. 2003). As such, they can review the case based on all the evidence in the record.

There is nothing in the Immigration Regulations or in the PERM Rule requiring the Service to accept documentation of experience or training only if it is listed on the application for labor certification. Indeed, the Immigration Regulation at 8 C.F.R. Sec. 204.5(g)(l) requires the Service to take an expansive view of the documentation of qualifying experience or training by requiring that "if such evidence is unavailable, other documentation relating to the alien's experience or training will be considered."

In addition, the PERM Form 9089 provides no detailed instructions or parameters on how qualifying training must be presented. ETA 9089 asks the employer to attest that the alien completed the training required for the position in Section J. There is no opportunity on Form 9089 where an employer may list the training completed. The Revised ETA Form 9089, expected to become effective in September 2009, has recast the template for providing information about the foreign worker and has included a specific section on Foreign Worker Training. Such information would typically be omitted from the PERM form by an Employer, even though it is an essential piece of information to establish the alien's qualifications. As explained above, the ETA has issued a Frequently Asked Question advising how training information might be placed on the form, but there is no convenient or easily understandable way for this to be done. 

For work experience, ETA 9089 asks for a listing of all jobs held during the past three years, but there is no warning on the form that training or experience not specifically listed on the form will be disregarded by the DHS when it reviews the I-140 petition.

Accordingly, when an I-140 petition is thoroughly documented, evidence about the alien's qualifications should be accepted by DHS, even though it was omitted from the 9089 Form Park K inadvertently or purposely by a poorly informed preparer, who may be the Employer himself!

PERM: Is Sheepherding an option for you?

The Immigration procedures for Sheepherders (an important part of American history, culture and economy) are complex and have always merited special attention by the U.S. Government.

In a special advisory issued in 2001 (ETA Advisory: Field Memorandum No. 24-01), the DOL ETA reviewed the entire history of sheepherders in the U.S. A review of the memorandum is interesting and useful not only for sheepherders, but for stakeholders in the labor certification program, now called PERM.

According to the memorandum, employers in several Western States utilized the provisions of the Immigration and Nationality Act to "import" non-immigrant foreign workers to work as sheepherders in connection with their ranching activities. The memorandum describes "unique occupational characteristics" including extended periods of time grazing herds of sheep in isolated mountainous terrain, and being on call to protect flocks from predators 24 hours a day, 7 days a week.

The memorandum states that in the 1950's Congress enacted special laws for sheep-herders and that most of the sheepherders came from Spain. They received special privileges to enter the U.S., i.e., no test of U.S. worker availability or adverse effect at the time.

In 1955 and 1956, the House Judiciary Committee, "in response to requests from sheep ranchers," undertook an investigation to examine allegations that a number of foreign sheepherders who had been admitted under the special laws were, in fact, leaving sheep-herding shortly after arrival in the U.S., and were subsequently employed in other industries and occupations.

In a report issued February 14, 1957, the Committee substantiated these allegations and, as a result, terminated the program with the recommendation that sheepherders be treated as normal H-2 temporary agricultural workers like those "which had enabled many East Coast agricultural employers to utilize the service of British West Indies workers on a temporary or seasonal basis in harvesting such crops as apples and sugar cane."

No further special sheepherder legislation was enacted and a program for temporary labor certification was begun consistent with the H-2 program administered by INS and DOL was begun.

Current procedures now permit Sheep-headers to apply for temporary H-2 visas, and after three years of employment, the foreign workers may be admitted as permanent resident aliens ("green card" holders).

Under current regulations, the PERM Rule (656.16) provides a special filing procedure for permanent labor certification. To apply, the alien must have been employed legally as a non-immigrant sheepherder in the United States for at least 33 of the preceding 36 months and must file an Application for Permanent Employment Certification directly with DHS (accompanying an I-140 petition), not with an office of DOL.

Documentation is satisfied by signed letters from each U.S. employer, attesting that the alien has been employed in the U.S. lawfully and continuously as a sheepherder for at least 33 of the immediately preceding 36 months.

If an application for a sheepherder does not meet these requirements (i.e., 33 months within the preceding 36 months of legal, non-immigrant employment in the U.S.), the applicant may file under the regular labor certification procedure that requires a test of the job market.

The history of Spanish sheepherders in the U.S. is actually linked with Basque immigrants who first came to the U.S. in the mid-1800's for the gold rush in the mid-1800's. As they did not always find a fortune in gold, many of them made a living by providing meat and other supplies to gold diggers. Due to political and economic problems in the Basque Country (a mountainous region between France and Spain), sheep-herding in the U.S. became an attractive option for young Basque emigrants.

Some Basque sheepherders took their wages in sheep instead of cash, and built their own sheep empires. In 1966, 1200 Basque sheepherders were in the U.S.

According to one historian, "Basque ethnic identity in the United States remains tied to the collective past they share of sheep-herding as the door opening to the United States, and even those Basques whose families never were a part of the sheep business still preserve this significant aspect to the history of Basque development in the West."

There are a number of video clips on You-Tube regarding sheep herding, including sheep, sheep dogs, and sheep-herders, including a zany, British version on You-Tube. http://www.youtube.com/watch?v=68lXUbZb9a8&feature=related 

About PERM: What Does "Training" Mean?

The PERM Law and BALCA decisions are replete with the term "training," but in the same authorities there is no concensus about what it means.

In olden times, it usually meant an apprenticeship or entry into a guild of workers, and in industrialized England, Dickens wrote in Great Expectations that Pip was given to his master to train as an indentured servant.

In modern times, young persons who live in developing countries may seek to be trained for jobs as young as 12-14 years old, and in the US the term "training" is still used to describe some forms of apprenticeship in trades. 

Although the traditional meanings of training may no longer seem relevant, the term has not yet been replaced with a more modern definition.

The PERM Form 9089 (first edition) does not have anywhere on the form to document an alien's training. An FAQ valiantly attempts to resolve the problem by advising employers to squeeze training information into Part "J" --  however, with zero tolerance requiring an electronic denial of PERM if anything on the form is out of place, this is a daunting task. (The new PERM form will resolve this problem by including a special section to list training.)

Some views of "what does training mean" may be gleaned from experience and by reviewing BALCA decisions to see how the term has been used in different situations.

First, a period of classroom training may be seen as training, as well as one which includes on-the-job experience. Note that most students pay for schooling and training, instead of getting paid for the opportunity to gain skills.

Second, a person may be trained wholly on the job. In this case, training is distinguished from experience by the level of qualifications to achieve entry level qualifications. For example, a chef may require two years experience, education or training before being able to work as a cook. (I apologize for this very low estimate of preparation time-- it comes directly from the US DOL O*Net). Thus, one to two years of cooking school, or unpaid on the job experience will suffice. Prior to gaining the qualifications to cook, the applicant can not be characterized as a cook, but rather as a cook-in-training.

Third, while the alien may need to prove he or she was trained to qualify for a position, the alien may also be used as a "trainer" to train US workers. In some cases, an Employer may need to prove that an alien's services are needed to train, and not to be trained, if there are no qualified US workers available. The DOL does not look favorable on applications where aliens are provided with training, instead of Americans, however aliens may be used to train US workers, who may then replace the aliens.

In terms of PERM, the most important fact about training is that it does not require proof of payment by the employer to prove the period of training. Therefore if no salary was paid, the alien can still prove qualifications for a job, based on training.

The important thing is to look at the details of the job and its requirements. A PERM case destined for third preference approval by DHS requires two years Specific Vocational Preparation (SVP). This is defined as post-secondary education, work experience or training.

Employers must be diligent to make the job requirements clear in the PERM application on Form 9089 and in all recruitment efforts, so that requirements of experience, education or training (even if unpaid) be clearly offered to all applicants who apply for the position.

And now that we understand more about "training", we must not forget the requirement to put the "Magic Language" on Form 9089, i.e.,  that any suitable combination of experience, education or training is acceptable.

If the alien already works for the employer and only qualifies for the employment opportunity because of alternative requirements offered, the PERM rule requires the Employer put "Magic Language" on almost every PERM application, i.e., that any suitable combination of education, experience or training is acceptable. Another reason for the Magic Language is that if there is any ambiguity or misunderstanding about the actual requirements, for example whether a requirement should properly be characterized as education, experience or training, the Magic Language will cure that defect because it clarifies that the terms education, experience and training  are inerchangeable. What is at issue is not the terminology, but that the applicant must be qualified by any combination thereof.

PERM Options for Ministers of Religion

Traditionally, ministers of religion apply for permanent residency under I-360 petitions. The petitions are rigorously reviewed to prevent fraud. Among the many prerequisites are two years experience in the profession during the two years immediately preceding the filing of the petition. This requirement prohibits use of experience gained in the past, if it was not gained during the 24 months occurring up to the filing date. The DHS has also imposed an extra-judicial requirement, in most cases, that the experience be paid, not voluntary, and that the minister prove that he or she worked exclusively as a minister and not in some other job during the same two-year period.

Due to these narrow and difficult requirements, ministers usually qualify only if they have been working abroad in their profession or, if in the US, if they have been working on a temporary work visa, such as R-1. Other ministers that left their employment to travel to the US for some other purpose, like an extended vacation or sabbatical, may have trouble proving the two-year work requirement immediately prior to filing the I-360 petition, and others may have worked in religious and lay positions, thus disqualifying themselves because they did not work exclusively as ministers.

The PERM rule offers a solution for ministers who do not qualify as beneficiaries of an I-360 petition, because a PERM case can be filed for anyone who has experience, education or training at any time in the past, anywhere, and not just exclusively as a minister during the two years immediately preceding the filing date. Note that a minister of religion who has studied for two years in post-secondary schools, or who has had non-paid training in his or her work, or who has worked for at least two years full-time as a minister,  can qualify for the third preference.

It is also possible to qualify for second preference, currently available for most countries (while third preference is unavailable at this time!) if the minister has an advanced degree or a Bachelor's plus five years of progressive experience. If the minister does not satisfy the advanced degree requirement, the minister may apply as an exceptional alien if he or she meets three out of six requirements, including 10 years experience, a post secondary diploma, a license, exceptional achievements, membership in a professional association, or work as the judge of others.

We recently analyzed a case where the minister would have no trouble qualifying for second preference. He had more than 10 years experience, several diplomas (including a diploma from bible school), had written a curriculum for bible school, belonged to professional associations and had judged the work of others relating to activities in the bible school.

While there is high unemployment in the United States, there are few experienced ministers of religion available to serve new congregations and communities in need. In the case of ethnic churches, a foreign language requirement would be normal, not restrictive, and this would tend to narrow the pool of qualified persons.

In conclusion, ministers (and other religious workers) may qualify by filing a PERM application and an I-140 for 2nd or 3rd preference, when they do not qualify for an I-360. If the minister decides to apply under the PERM regulation, remember that all ministers are considered to be members of the professions and require the extended recruitment required for professions by the PERM rule. 

This would include the basic recruitment requirements (two Sunday ads plus 30 days in the state job bank) and three out of 10 additional recruitment efforts such as websites, journals, radio ads, etc.

A recent memo from Mr. Donald Neufeld, Acting Associate Director for USCIS states that applicants may now file concurrent filings for I-360's and I-485 applications for residency and work permits, as the result of federal court litigation in Ruiz-Diaz v. United States, No. CO7-1881RSL (W.D. Wash. June 11, 2009), however, applicants under the PERM rule cannot file I-140 petitions and I-485 applications for residency and work permits concurrently until after the PERM case is approved. An exception exists for aliens who qualify for an exemption of a PERM case under Schedule A, Group II, of the DOL's PERM regulations.

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!