David Isaacson

SOME PRELIMINARY REACTIONS TO THE DISTRICT COURT DECISION REFUSING TO ENJOIN PORTIONS OF ALABAMA’S IMMIGRATION LAW

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By David A. Isaacson

Chief U.S. District Judge Sharon Blackburn of the U.S. District Court for the Northern District of Alabama recently issued a memorandum opinion preliminarily enjoining the enforcement of certain portions of Alabama’s new immigration law but upholding other portions. This decision has already attracted substantial criticism, with the New York Times describing it as “dismal”. Additional useful background regarding the decision is available from Immigration Impact. As a follow-up to my previous article on our firm’s website regarding constitutional and practical problems with the Alabama law, it seemed appropriate to examine how Judge Blackburn’s decision does and does not address some of these problems.

Some of the most absurd portions of the statute were struck down, so there is some good news. Judge Blackburn did enjoin the portion of the Alabama statute that barred lawfully admitted refugees, and others such as those with Temporary Protected Status, from attending public universities. She enjoined the portion of the statute that attempted to make it illegal to rent housing to the unlawfully present, by deeming it “harboring”, and she also enjoined the portion of the statute that attempted to criminalize work and the solicitation of employment by an “unauthorized alien”. In addition, she enjoined portions of the statute that would have forbidden companies from deducting wages paid to unauthorized workers as a business expense, and allowed other workers to sue those companies.

Some deeply problematic provisions of the statute were left standing, however. One provision, similar to a provision of Arizona’s much-criticized SB 1070, criminalizes failure to register or carry an alien registration document, in violation of federal law, when committed by “an alien unlawfully present in the United States.” As explained in this author’s previous article on our firm’s website regarding the Arizona law, the application forms used by certain battered women and crime victims to petition for relief under the Violence Against Women Act or for a “U-visa” do not constitute applications for alien registration under the governing regulations. Thus, certain such battered women and crime victims may arguably be in violation of the federal statutes regarding alien registration, but as a matter of prosecutorial discretion, it is exceedingly unlikely that the federal government would ever pursue such people for those technical violations. While Alabama may have somewhat reduced the set of truly absurd potential violations of its statute by covering only those who are “unlawfully present” rather than Arizona’s reference to “a person who maintains authorization from the federal government to remain in the United States” — since battered women actually granted deferred action will not qualify as unlawfully present even though they likely also do not qualify as maintaining authorization to remain in the United States — the statute could still be applied by Alabama to applicants for VAWA or U-visa relief who have not yet been granted relief. This is merely an example of why it is a bad idea, as a matter of our constitutional structure, to allow a state to meddle in a field so comprehensively occupied by the federal government. Alabama’s attempt to reserve the right to pursue such technical violations of the alien registration statutes, even in cases where the federal government does not wish to, should have been held pre-empted.

Another problematic provision that was left standing by Judge Blackburn’s opinion again closely resembles one of the provisions of Arizona’s SB 1070. According to Section 12(e) of Alabama’s law, police officers must attempt to ascertain the citizenship and immigration status of any person they detain, if “reasonable suspicion exists that a person is an alien who is unlawfully present in the United States” and unless “the determination may hinder or obstruct an investigation.” Along the lines of Arizona’s SB 1070, Alabama’s statute prohibits law enforcement officers from considering “race, color, or national origin . . . except to the extent permitted by the United States Constitution or the Constitution of Alabama of 1901.” As with the Arizona law, the logical implication is that to the extent consideration of race, color or national original may be constitutional under whichever of the United States Constitution or the state constitution is more permissive on the subject, the law enforcement officials and agencies of Arizona are invited to engage in it. In addition, the statute’s list of documents which a person can present and thus be “presumed not to be an alien who is unlawfully present in the United States” includes a “foreign passport with an unexpired United States Visa and a corresponding stamp or notation by the United States Department of Homeland Security indicating the bearer’s admission to the United States” but does not include any option for an expired visa and a document from DHS showing an unexpired period of authorized stay. If the “stamp or notation” indicates that the bearer’s period of admission and authorized stay is unexpired, it is not at all clear why it should matter if the bearer’s U.S. visa is expired or not. There is no logical reason to subject anyone who obtains an extension of stay or change of status with a validity period beyond the expiration date of their visa to more extensive detention while their status is electronically verified with DHS, if their DHS-issued Form I-94 clearly shows that their status is still valid. This legal illogic gives still more weight to the complaint made by the federal government that DHS may now be overwhelmed by requests for information and that substantial burdens may be placed by Arizona’s law on lawfully present immigrants (and nonimmigrants). By meddling in areas which its legislators quite apparently did not fully understand, Alabama has created a system in which nonimmigrants who have been granted a change of status or extension of stay beyond the validity of their initial visa, as well as asylees and those having Temporary Protected Status, may be detained and an inquiry made to DHS because such persons lack “an unexpired United States Visa.” This, too, should have been held preempted and was not.

Judge Blackburn’s memorandum opinion also refused to preliminarily enjoin sections of the Alabama law that render unenforceable any contract entered into by an unlawfully present alien, with certain limited exceptions, and forbid unlawfully present aliens to enter into certain business transactions with the state and its subdivisions, such as obtaining a driver’s license or business license. The difficulty with these sections is that, as explained in my previous article on our firm’s website, unlawful presence, insofar as it is a defined term, does not correspond neatly to a set of people that it would have made any sense to subject to such prohibitions. Alabama appears to have forbidden from getting a driver’s license, or entering into enforceable contracts, many people with pending applications for adjustment of status or cancellation of removal filed for the first time in removal proceedings, who are considered unlawfully present but who may become lawful permanent residents if their applications succeed. Moreover, Alabama has forbidden many people who are specifically authorized to be employed in the United States from getting driver’s licenses or entering into binding contracts in connection with that employment (unless perhaps the employment contracts fall within the terms of the statute’s exception for “a contract authorized by federal law”, which seems a gray area at best), since an applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). (Indeed, even some people who have been ordered removed may be authorized to accept employment while challenging that order in various ways or awaiting removal, as explained in a previous blog piece by this author.) Once again, by meddling in an area of law that is the responsibility of the federal government and that its legislators apparently did not fully understand, Alabama has created the possibility for truly absurd outcomes.

Finally, Judge Blackburn refused to preliminarily enjoin the section of the Alabama law that attempts to require students enrolling in public school to provide documents regarding their citizenship and immigration status. While it is conceivable that the section’s apparent lack of a penalty provision might save it from unconstitutionality, there is some tension, to the extent that the statute may be an effort to coerce unlawfully present children not to attend Alabama public schools, between this provision and the Supreme Court’s decision in Plyler v. Doe, 457 U.S. 202 (1982), forbidding a state to prevent children from attending public schools based on their immigration status. It has been reported that upon the coming into effect of this portion of the statute after Judge Blackburn’s decision, “Hispanic students have started vanishing from Alabama public schools” because fear has caused “scores of immigrant families” to withdraw their kids from school or keep them home. Alabama should not be permitted to do indirectly what the Supreme Court has forbidden it to do directly.

Judge Blackburn’s memorandum opinion only addressed whether to grant a preliminary injunction, so it is still possible that she may reverse herself before the conclusion of the case at the district court level. If she does not, the Court of Appeals for the Eleventh Circuit or the Supreme Court may need to step in to reverse those portions of her recent decision that uphold particularly problematic portions of Alabama’s law.

David Isaacson

THE POTENTIAL REACH OF KHALID V. HOLDER: HOW THE 5TH CIRCUIT INTERPRETED THE CSPA AND HOW SOME OUTSIDE ITS TERRITORY MAY BE ABLE TO BENEFIT

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By David A. Isaacson

In its recent decision in the case of Khalid v. Holder, the U.S. Court of Appeals for the Fifth Circuit rejected the 2009 decision of the Board of Immigration Appeals (“BIA”) in Matter of Wang. The Fifth Circuit in Khalid held that a derivative beneficiary of an immigrant petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, can under section 203(h)(3) of the Immigration and Nationality Act (“INA”) retain the priority date originally given to the principal beneficiary and proceed in the 2B preference category with respect to that principal beneficiary. That is, if your aunt or your grandfather filed a petition for your parent when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you can retain the family’s place in the priority-date waiting line as the adult son or daughter of your now-lawful-permanent-resident parent, under the 2B preference, rather than going to the back of the years-long waiting line for an immigrant visa number. The BIA had found in Matter of Wang that such priority date retention was impermissible, but the Fifth Circuit held in Khalid that this ignored the plain meaning of the statute.

In rejecting the BIA’s decision in Matter of Wang, the Fifth Circuit also rejected the decision of the Court of Appeals for the Second Circuit in Li v. Renaud regarding the same CSPA provision, criticized by this author in a previous blog post The Second Circuit had reached essentially the same conclusion as Matter of Wang by finding the CSPA to unambiguously preclude retention of a priority date “to use for a different family petition filed by a different petitioner." The Ninth Circuit in Cuellar de Osorio v. Mayorkas found the statute to be ambiguous and the BIA’s interpretation in Wang a reasonable one, a conclusion also inconsistent with the Fifth Circuit’s decision in Khalid.

The BIA itself had previously taken a more generous view, before changing its mind: Matter of Wang overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family petition beneficiary to retain the priority date that she previously had shared with her parent. The Fifth Circuit in Khalid found Matter of Garcia to represent the correct approach.

Additional background regarding the CSPA in general and Matter of Wang in particular, for those who are interested, can be found in an earlier article written by this author for our firm’s website. The portion of the CSPA in question, now INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

It is available online as enacted into the U.S. Code at 8 U.S.C. § 1153.

In Matter of Wang, the BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was "limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident." Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.

As the Fifth Circuit pointed out in Khalid, however, the BIA’s finding of ambiguity ignores the internal cross-references in § 203(h) and the statute’s clear identification of the petitions to which it applies. Subsection (h)(2), entitled “Petitions described”, makes clear that INA § 203(h) as a whole applies to all derivative beneficiaries, as well as 2A child beneficiaries. Moreover, “(h)(3) expressly references (h)(1), which in turn expressly references (h)(2).” Particularly because subsection (h)(3) expressly applies “for the purposes of subsections (a)(2)(A) and (d)” just as subsections (h)(1) and (h)(2) do, there is no textual basis for excluding from the protection of (h)(3) the derivative beneficiaries under subsection (d) who are all expressly included by (h)(2). Thus, as the Fifth Circuit said in Khalid, “subsection (h)(2) directly answers the question that the BIA found that Congress left unanswered.”

The Second Circuit’s decision in Li is similarly convincingly refuted by the Fifth Circuit in Khalid. Li’s holdingthat a priority date could not be retained “to use for a different family petition filed by a different petitioner” was based on the notion that there is no “appropriate category” to convert to in the sort of scenario at issue in Li and Khalid, because there is, for example, “no family preference category for grandchildren of LPRs”. The Fifth Circuit in Khalid aptly notes that this latter criticism only makes sense if one assumes that a change in petitioners is indeed necessarily impermissible, and that no such rule against a change in petitioners appears anywhere in the text of the statute. Proceeding on this unwritten assumption does leads to the conclusion that, as the BIA held in Matter of Wang, § 203(h)(3) only protects the derivative child beneficiaries of second-preference petitions for a spouse, who were already protected by regulation—but in that case, as the Fifth Circuit noted, “the only difference between the regulation and the Li court’s reading of subsection (h)(3) is that the statute would relieve the spouse of the burden of filing a new petition, since the conversion would now be automatic.” It is, as the Khalid court pointed out, unlikely “that this meager benefit was all Congress meant to accomplish through subsection (h)(3), especially where nothing in the statute singles out derivative beneficiaries of second-preference petitions for special treatment.” Reading the statute as it is written gives much larger and more appropriate significance to § 203(h)(3).

Beyond the legal virtues of the Fifth Circuit’s decision, however, it is worth examining the practical implications of its ruling for those who are not lucky enough to live within the boundaries of the Fifth Circuit, that is, Texas, Louisiana, and Mississippi. As Cyrus Mehta pointed out in a recent blog piece, one way for § 203(h)(3) to benefit many more outside of the Fifth Circuit would be for Attorney General Eric Holder to issue a decision acquiescing in Khalid on a nationwide basis, just as the BIA on the Attorney General’s behalf has acquiesced in favorable Court of Appeals decisions in the past. Unless and until such action is taken, however, one question which arises is whether those who seek the benefit of Khalid may be able to obtain it through litigation even if they reside outside the jurisdiction of the Fifth Circuit.

In cases where the original beneficiary who has now become an LPR seeks to recapture the old priority date under § 203(h)(3) for their derivative son or daughter by filing a new I-130 petition, obtaining the benefit of Khalid may be difficult, at least when the parties do not happen to reside within the Fifth Circuit. Such I-130 petitions will generally be processed either by the California Service Center, which is located within the jurisdiction of the Court of Appeals for the Ninth Circuit (home to Cuellar de Osorio), or the Vermont Service Center, which is located within the jurisdiction of the Court of Appeals for the Second Circuit (home to Li). The initial filing and receipt by USCIS of an I-130 petition will usually take place at the USCIS lockbox in Chicago, within the jurisdiction of the Court of Appeals for the Seventh Circuit, which has not yet ruled on the correctness of Matter of Wang. As an initial matter, therefore, USCIS is likely to follow Matter of Wang in such cases.

If a lawsuit were filed against USCIS to attempt to force compliance with the proper meaning of INA § 203(h)(3) as found in Khalid, the statute governing venue would be 28 U.S.C. § 1391. For actions against U.S. government agencies, 28 U.S.C. § 1391(e) provides:

(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which

  1. (1) a defendant in the action resides,
  2. (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
  3. (3) the plaintiff resides if no real property is involved in the action.

Leaving aside Fifth Circuit residents, therefore, such a lawsuit could only be brought in a district within the Fifth Circuit if that was where “a substantial part of the events or omissions giving rise to the claim occurred”—which is, in the case of an I-130 petition, unlikely for the reasons explained above. For those residing in a circuit other than the Fifth, Ninth, or Second – one which has not yet confronted Matter of Wang – an I-130 filing followed by litigation may still be worthwhile, but would likely have to go up to the relevant Court of Appeals to succeed.

The filing of a new I-130 petition following the adjustment of the original beneficiary, however, is not the only way to seek CSPA protection for a derivative son or daughter under the logic of Khalid. In Matter of Garcia, which the Fifth Circuit in Khalid cited approvingly, the BIA made quite clear that it was the original petition filed for the adjustment applicant’s mother that rendered her eligible for adjustment using the old priority date, after having been automatically converted to a second-preference petition. An additional petition was not necessary; Ms. Garcia was permitted to seek adjustment of status based on the converted old petition. Indeed, the Fifth Circuit in Khalid described the non-necessity of filing a second petition as the one (meager) benefit which 203(h)(3) would provide, at least in 2A derivative cases, even under the Second Circuit’s narrow interpretation. Thus, where visa numbers are available for the appropriate priority date in the 2B preference category, those seeking the benefit of Khalid’s interpretation of the CSPA should be able to simply file a derivative I-485 application for adjustment of status based on the deemed converted petition, and challenging any denial or rejection in federal court, without the intervening step of a new I-130 petition.

Derivative adjustment applications in family-based cases, unfortunately, are filed with the USCIS Chicago lockbox, within the Seventh Circuit where Matter of Wang has not been struck down, and are then generally transferred to the local office in the area where the applicant resides, which for applicants not having the good fortune to reside within the Fifth Circuit will also not be in an area definitively outside the grasp of Matter of Wang. Derivative adjustments in employment-based cases based on a pending or approved I-140 petition, however, are, at least for those living in roughly the eastern half of the U.S., filed with the USCIS lockbox in Dallas or Lewisville in Texas, and generally processed by the Texas Service Center before perhaps being sent to a local office for an interview. Specifically, the area in question includes Alabama, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, U.S. Virgin Islands, and West Virginia. For applicants living in those states and territories, if a derivative I-485 based on an I-140 is filed and denied or rejected based on Matter of Wang, it appears that “a substantial part of the events or omissions giving rise to the claim” will have occurred in Texas. (For those applicants in the western and midwestern states not included in the above list, sadly, their I-485 applications will go to the Phoenix Lockbox in the Ninth Circuit and perhaps then the Nebraska Service Center in the Eighth Circuit, which has not yet ruled on Matter of Wang.)

Thus, if the son or daughter of an I-140 beneficiary who would benefit from the Khalid interpretation of the CSPA, residing in one of the listed states within Texas lockbox jurisdiction, files a derivative adjustment application along with their parent’s I-140-based application without awaiting a redundant I-130 by their parent, it would appear that the rejection or denial of that application could be potentially challenged in a Texas federal district court, located within the Fifth Circuit and bound by Khalid. Such a challenge to the legally erroneous denial (or rejection) of an adjustment application by USCIS would be brought under the Administrative Procedure Act, as explained by the Court of Appeals for the Third Circuit in Pinho v. Gonzales, 432 F.3d 193 (3d Cir. 2005). Some other circuit courts of appeals have previously rejected the logic of Pinho, but the Fifth Circuit is not among them; the question of district court jurisdiction over legal error in the denial of an adjustment application, outside the context of removal proceedings, appears to be an open one in the Fifth Circuit.

Due to this jurisdictional uncertainty and the possibility that DHS could avoid the problem by initiating removal proceedings in the beneficiary’s home location, such an approach would be quite risky for any derivative beneficiary residing outside the Fifth Circuit who was not maintaining nonimmigrant status (and was utilizing, for example, INA § 245(i)). However, in those instances where the adult son or daughter of an I-140 beneficiary has acquired a nonimmigrant status of his or her own, and resides in the half of the U.S. that is under the jurisdiction of the Texas lockbox, attempting to file a derivative adjustment application under Khalid without an intervening I-130 petition may be an approach worth considering if visa numbers in the 2B preference category are available for the relevant priority date.

Cora-Ann Pestaina

PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I FILE A PERM LABOR CERTIFICATION?

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by Cora-Ann V. Pestaina



The Department of Labor (DOL) has announced that the Office of Foreign Labor Certification (OFLC) National Prevailing Wage Center (NPWC) has temporarily suspended processing of prevailing wage determinations (PWD), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in 3-4 weeks.

In response to practitioners’ inquiries concerning pending requests, the NPWC has been issuing the following e-mail:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. If you have further questions concerning your PWD, please contact 202-693-3010.

In an August 30, 2010 decision in CATA v. Solis the District Court ordered the DOL to promulgate new H-2B prevailing wage regulations. When the DOL made a decision to delay, by almost one year, the effective date of those regulations, the Federal Court found that the DOL violated the Administrative Procedure Act by imposing the delay without engaging in notice and comment. The Court also found that the DOL acted in contravention of the Immigration and Nationality Act because it justified the delay by pointing to potential hardship to employers—a consideration that was outside the scope of the DOL’s congressional mandate. The year-long delay in implementing the new wage regulations would require the continued payment of a lower and invalid wage to H-2B workers. In a June 15, 2011 court order, the Court mandated a change in the effective date of those regulations.

In order to comply with the Court order, the DOL issued a final rule published in the Federal Register on August 1, 2011, with an effective date of September 30, 2011. There are existing H-2B temporary labor certifications covering work to be performed after September 30, 2011, for which the previously issued PWDs no longer apply. The NPWC is now utilizing all of its resources to reissue approximately 4000 PWDs to reflect the new H-2B wage rates that will apply for H-2B employment on or after September 30, 2011. In the rule published on August 1, 2011, the DOL indicated that they will be able to reissue all of the required H-2B wage determinations before October 1, 2011 but not before August 31, 2011.

The temporary suspension of processing on PWDs greatly impacts the PERM labor certification process. PERM is the first step of the green card process for foreign nationals seeking permanent residence through their employment. The PWD is an extremely important component of the process and pursuant to 20 C.F.R. §656.40, obtaining a PWD is a mandatory step under PERM. In accordance with 20 C.F.R. §656.40(c) PWDs are issued with a validity period between 90 days and 1 year from the date of determination and in order to use a PWD, the employer must file the PERM application or begin required recruitment within the validity period of the PWD.

Under 20 C.F.R. § 656.10, the employer must post the Notice of Filing for at least 10 consecutive business days between 30 and 180 days before filing the PERM application and the Notice of Filing must contain a wage that is equal to or greater than the PWD. In addition, under 20 C.F.R. §656.17, the mandatory recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. Employers who commenced PERM recruitment prior to obtaining the PWD may now have to watch the recruitment expire if the PWD is not issued in time. The employer may have to conduct new recruitment once the NPWC resumes processing of PWDs.

Conducting new recruitment could be a very expensive process for the employer. But, beyond that, the inability of the employer to file a PERM application on behalf of a foreign national in H-1B status may have more far-reaching effects. §106(a) of the American Competitiveness in the 21st Century Act (AC21) allows one to apply for a 7th year H-1B extension if a labor certification or an I-140 petition was filed 365 days prior to the end of the 6th year in H-1B status.

Accordingly, if, due to the current suspension of processing, an employer is unable to file the PERM prior to the commencement of the foreign national’s 6th year in H-1B status, this may affect the foreign national’s ability to extend his or her H-1B status at the end of the 6th year.

There are a few steps employers may take to cope with the current delays in processing and to ensure that they are able to timely file their PERM applications and utilize recruitment before it expires or to protect the foreign national’s ability to extend H-1B status in the US.

Utilize a previous PWD



An employer is permitted to use the same PWD for multiple PERM applications if the PWD is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved. Therefore, a PWD issued in relation to a previous PERM could potentially be used for other PERMs.

Utilize an expired PWD



If the employer commenced its earliest recruitment during the PWD’s validity period, then there is clearly no need to obtain a new PWD and the employer may file the PERM application utilizing the expired PWD.



The DOL previously denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. However, under the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), the employer can rely on an expired PWD in the filing of a PERM application if the employer initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application. The DOL has not yet indicated that it will follow Matter of Horizon Computer Services and employers who intend to rely on this case ought to bear in mind that the employer in that case initiated MOST of its recruitment during the PWD validity period. (See my previous blogs on this topic at http://tiny.cc/mtv39 and http://tiny.cc/9u8zp.)

Predicting the PWD

Practitioners can predict what level and wage will be assigned to any position by going through the same analysis in which the DOL will engage. The Prevailing Wage Guidance (See “Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs,” published on AILA InfoNet at Doc. No. 10019468 (posted Jan. 4, 2010)) provides a detailed description of the four levels, as well as a worksheet at Appendix C and instructions specifying five steps to determine the prevailing wage level. Once the PWD has been predicted, the employer can post the Notice of Filing. This way, the employer will not be forced to wait until the NPWC resumes processing and actually issues a PWD in order to post the Notice of Filing. If the Notice of Filing has already been posted and the employer has complied with the mandatory 30-day quiet period, once the NPWC issues the PWD, the employer may quickly proceed to file the PERM application. If the employer is clearly offering a wage that is excess of any PWD that the NPWC could issue, then the employer need not estimate the PWD and need not wait for the PWD before posting the Notice of Filing.

In the event that the NPWC issues a PWD that exceeds the predicted wage listed on the Notice of Filing, the employer will have no choice but to post a new Notice of Filing bearing the new, higher wage. If the wage was listed in any other forms of recruitment, then that recruitment will have to be restarted. All of this will delay filing of the PERM. The employer will have to conduct precise calculations to ensure that all recruitment occurs within the 30 – 180 day timeframe prior to filing a PERM application.

Hopefully, come October 1st, the NPWC will resume processing on PWDs, etc. As usual, these requests will be processed on a first come, first served (FIFO) basis and no expedite requests will be accepted. Practitioners must continue to file requests for PWDs to secure a place in the lengthening queue.

David Isaacson

LEAVING TOO MUCH FOR ANOTHER DAY: WHAT THE SECOND CIRCUIT’S RECENT CSPA DECISION MISSED IN AGREEING WITH THE RESULT OF MATTER OF WANG

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By David A. Isaacson

In its recent decision in Li v. Renaud, the U.S. Court of Appeals for the Second Circuit found that a derivative beneficiary of a family-based petition, whose adjusted age even under the Child Status Protection Act (“CSPA”) is above 21, cannot use section 203(h)(3) of the Immigration and Nationality Act (“INA”) to retain the priority date originally given to the principal beneficiary with respect to a petition in the 2B preference category by that principal beneficiary. That is, if your grandfather filed a petition for your father when you were 14 years old, and the petition took one year to process, but a visa number was not available for another 10 years, you cannot retain the family’s place in the priority-date waiting line now that you count as over 21 after subtracting the year that the petition was pending; instead, you will have to go to the back of the years-long waiting line for an immigrant visa number.

In so holding, the Second Circuit essentially approved the result reached by the Board of Immigration Appeals (“BIA”) in its Matter of Wang decision in 2009, although for somewhat different reasons. In the process, however, the Second Circuit appears to have overlooked the significance of its reasoning as applied to employment-based petitions, a subject which was deliberately left for another day but which I would argue sheds substantial light on why the Second Circuit’s decision in Li was incorrect.Additional background regarding the CSPA in general and Matter of Wang in particular can be found in an earlier article written by this author for our firm’s website. The section construed by Matter of Wang and Li v. Renaud, INA § 203(h), reads as follows:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-

(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–

(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by

(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

(2) PETITIONS DESCRIBED- The petition described in this paragraph is—

(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or

(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d), the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

(4) APPLICATION TO SELF-PETITIONS- Paragraphs (1) through (3) shall apply to self-petitioners and derivatives of self-petitioners.

Enacted into the U.S. Code at 8 U.S.C. § 1153(h)(3), this section can be found online within 8 U.S.C. § 1153 .

In Matter of Wang, the BIA had overturned a previous unpublished decision called Matter of Maria T. Garcia, which did allow the aged-out child of a family preference petition beneficiary to retain the priority date that she previously had shared with her parent. The BIA found that the language of § 203(h)(3) was ambiguous, but that legislative intent showed § 203(h)(3) to codify an existing regulatory practice in which priority dates could be retained when the same petitioner filed a second petition for the same beneficiary. As the BIA explained, this practice was “limited to a lawful permanent resident’s son or daughter who was previously eligible as a derivative beneficiary under a second-preference spousal petition filed by that same lawful permanent resident.” Outside that context, the BIA found § 203(h)(3) inapplicable to derivative beneficiaries.
The Second Circuit in Li went a step further, holding that the statutory language was not even ambiguous, and that one need not resort to legislative intent to find that a priority date could not be retained “to use for a different family petition filed by a different petitioner.” Under circumstances such as the grandfather/child/grandchild fact pattern noted earlier (modeled on the facts of Li), the Second Circuit said, there is no “appropriate category” to convert to, because there is, for example, “no family preference category for grandchildren of LPRs”.
In footnote 1 of the Li opinion, at the urging of amicus curiae Mohammed Golam Azam, the Second Circuit made clear that they were leaving the issue of employment-based petitions for another day, and not determining how § 203(h)(3) applies to such petitions. The problem with this well-intentioned effort not to decide an issue unnecessarily is that it allowed the court to avert its eyes from the implications of the Liholding in the employment-based context, implications which I would argue suggest a problem with the entire holding.

As the reader will note from the quoted text of INA § 203(h) above, § 203(h)(2) specifically applies § 203(h) to derivative beneficiaries under § 203(d) not just of family-based petitions covered by § 203(a), but also of petitions in employment-based cases covered by § 203(b) and in diversity cases covered by § 203(c). Moreover, § 203(h)(3) specifically mentions subsection (d), pertaining to derivative beneficiaries, so we know that § 203(h)(2) doesn’t just apply to principal beneficiaries under § 203(a)(2)(A), children of Lawful Permanent Residents (“LPRs”) petitioned-for under the “2A” preference, who age out and must use the 2B preference for adult sons and daughters. Rather, the structure of § 203(h) read as a whole clearly indicates that the CSPA mechanisms apply to employment-based cases just as well as to family-based cases, and that priority-date retention applies to derivative beneficiaries just as much as to principal beneficiaries.

In the employment-based context, however, the reasoning of Li, if taken to its logical conclusion, suggests that § 203(h)(3) has no role to play at all. Being the child of the beneficiary of an employment-based petition will never qualify as a preference category in its own right, any more than being the grandson of a family petitioner is its own category does, and the derivative beneficiary will never (or almost never) be the direct beneficiary of a second petition by the same employer. Perhaps the Second Circuit in a later case will choose to shy away from this implication and prevent its precedent from going further down the wrong path, but that does appear to be the direction in which Li points it.
On the other hand, § 203(h)(3) does have work to do in the context of § 203(b) petitions if we adopt the interpretation that Li and Matter of Wang rejected, the one previously offered by the BIA in Matter of Maria T. Garcia: that the appropriate category for an aged-out derivative under § 203(d) is the 2B category, under INA § 203(a)(2)(B), with respect to the original beneficiary. This interpretation allows the derivative beneficiary to continue in essentially the same relation to the principal beneficiary that has existed all along, modified for the aging-out. It should not come as a surprise that the process allowed by this interpretation requires awaiting the LPR status of the principal beneficiary, because the defining characteristic of derivative beneficiaries under § 203(d) is always their entitlement to “the same order of consideration . . . if accompanying or following to join[] the spouse or parent”—to quote directly from the text of § 203(d) as enacted at 8 U.S.C. § 1153. By definition, one cannot accompany or follow to join a parent who has not yet become an LPR, whether or not the CSPA is involved.
The irrelevance of § 203(h)(3) with regard to § 203(b) derivatives caused by the interpretation in Li is a contextual clue in the statute that this interpretation is incorrect. Interpretations which render part of a statute superfluous are, and should be, disfavored. According to the logic of Li, it appears that even though § 203(h)(2)(B) mentions family-based petitions under § 203(a) and employment-based petitions under § 203(b) in precise parallel as contexts in which the entirety of § 203(h) should apply to derivative beneficiaries under § 203(d), and even though § 203(d) is specifically cited in § 203(h)(3) as a context in which that particular subsection applies, § 203(h)(3) may not apply at all to § 203(d) derivative beneficiaries of § 203(b) employment-based petitions. Whether or not one agrees with the BIA’s policy decision in Matter of Wang (which this author finds overly harsh) as applied to a statute thought by the BIA to be ambiguous, it certainly seems excessive given this clue to read the statute as unambiguously mandating such a result. And yet that is what the Second Circuit did in Li.
There is a famous saying, often attributed to Thomas Jefferson, that you should never put off until tomorrow what you can do today. Courts are often properly reluctant to follow this maxim, because it is a principal of judicial decision-making in our system of law that a court should not reach out to decide questions unnecessarily. But when a court too cavalierly puts off until tomorrow a question which is actually important to the resolution of the issue it is deciding, it may come to an incorrect result. It appears that this may be what occurred in Li.

Cora-Ann Pestaina

NOT SO FAST! DOL HESITANT TO FOLLOW MATTER OF HORIZON COMPUTER SERVICES ON PREVAILING WAGE VALIDITY

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By Cora-Ann Pestania

My elation over the recent Board of Alien Labor Certification Appeals’ (BALCA) decision in Matter of Horizon Computer Services, Inc., 2010-PER-00746 (May 25, 2011), expressed in my last blog, has proven to be short-lived. Last week, I attended the American Immigration Lawyers’ Association’s (AILA) Annual Conference on Immigration in San Diego, CA. At the conference, one of the most popular panels is the Department of Labor (DOL) Open Forum where members of AILA are permitted to directly question such bigwigs as William Carlson, Administrator, and Elissa M. McGovern, Chief of Policy Division, both of the Office of Foreign Labor Certification, U.S. Department of Labor. Naturally, the subject of Matter of Horizon Computer Services arose.

In Matter of Horizon Computer Services, the employer commenced its earliest recruitment before the Prevailing Wage Determination’s (PWD) validity period and filed the PERM after the PWD had expired. The DOL, citing 20 C.F.R. §656.40(c), denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period. The DOL currently interprets 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period and has denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. In Matter of Horizon Computer Services, BALCA held that the timing of the employer’s recruitment complied with the regulations in 20 C.F.R. §656.40(c) and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA held that the employer must initiate some recruitment during the PWD validity period but not necessarily the “earliest” recruitment.

At the AILA Conference, the DOL Open Forum panel was questioned as to whether the DOL would soon be issuing a new FAQ (Frequently Asked Questions) with regard to the holding in Matter of Horizon Computer Services and whether attorneys could safely rely on this case when conducting recruitment for purposes of a PERM labor certification application. We did not get the answer we were hoping for. Instead, Ms. McGovern explained that the DOL reviews BALCA decisions just as attorneys do and that Matter of Horizon Computer Services is currently being reviewed along with BALCA’s decision in Matter of Ecosecurities, 2010-PER-00330 (June 15, 2011), which she said has a “similar fact pattern.” Ms. McGovern informed attendees that the DOL will figure out a path “in between” the two decisions and devise a directive.

In Matter of Ecosecurities, the employer commenced recruitment on May 6, 2007. The employer obtained a PWD valid from June 18, 2007 to September 16, 2007. The employer filed the PERM on Monday, September 17, 2007. The DOL Certifying Officer (CO) denied the PERM under 20 C.F.R. §656.40(c) because neither the earliest date listed for a recruitment step nor the date the application was filed, fell within the PWD validity period. The employer requested reconsideration and argued that because the PWD expired on a weekend, the expiration date ought to be extended to Monday, September 17, 2007. As authority, the employer cited the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (OALJ) which provides that “[i]n computing any period of time under these rules…the time begins with the day following the act, event, or default, and it includes the last day of the period, unless it is a Saturday, Sunday or legal holiday observed by the Federal Government in which case the time period includes the next business day.” 29 C.F.R. § 18.4(a). The CO affirmed the denial and forwarded the case to BALCA finding that there was no reason why the employer could not have filed the application on Sunday, September 16, 2007 since the Permanent Online System (www.plc.doleta.gov) is available 24 hours a day and seven days a week. BALCA held that the OALJ Rules of Practice and Procedure cited by the employer in support of its argument that the PWD ought to be considered valid until Monday, September 17, 2007, have no bearing on the expiration date of the employer’s PWD because they only govern filings before the OALJ and, moreover, govern filings by mail on days when the office is closed. BALCA stated that while its decision “may appear to elevate form over substance,” it is an appellate body and it “simply does not have the discretion to waive the clearly stated regulatory requirements.”

BALCA had, a mere 21 days earlier, held in Matter of Horizon Computer Services, that the Employment and Training Administration (ETA) did not intend that the first recruitment step begin during the validity period, only that some recruitment step be initiated during that time and BALCA vacated the denial of the PERM application filed after the PWD’s expiration date. In light of that, why didn’t BALCA similarly hold, in Matter of Ecosecurities?

Matter of Ecosecurities is devoid of any facts that would aid in a perfect side by side comparison of the two cases. But, in Matter of Horizon Computer Services the employer placed the Job Order only 2 days before the PWD validity period and then commenced every other type of recruitment within the PWD validity period. In its decision, BALCA made an effort to point out that “the employer initiated every single recruitment step during the validity period with the exception of its first recruitment step.” In Matter of Ecosecurities, the Employer initiated its first form of recruitment 43 days before the PWD validity period. This long time period is significant. The fact that BALCA did not discuss the other forms of recruitment and when they were each initiated is significant. Since there is no discussion about the timing of the other recruitment, we can assume that no recruitment was initiated during the PWD validity period and all recruitment was initiated prior to June 18, 2007. This makes Matter of Horizon Computer Services and Matter of Ecosecurities entirely distinguishable. If the employer in Matter of Ecosecurities had initiated some recruitment within the PWD validity period, BALCA would have decided the case similar to Matter of Horizon Computer Services. Contrary to Ms. McGovern’s statements, the two cases do not have “similar fact patterns” and the DOL should not conflate the two decisions!

Nevertheless, at least for now and until the DOL issues a directive, it is safest for practitioners to continue to abide by the DOL’s erroneous interpretation of 20 C.F.R. §656.40(c) and ensure that our clients either begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period. In my opinion, though, Matter of Horizon Computer Services can indeed be relied upon if the DOL has denied a PERM application where the employer commenced recruitment before the PWD validity period, initiated at least one form of recruitment during the PWD validity period and filed the PERM after the PWD had expired.

Cora-Ann Pestaina

BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION’S VALIDITY PERIOD

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Cora-Ann V. Pestaina

Pardon me while I take a moment to pump my fist! I am just really excited (and also relieved that sanity finally prevailed!) over the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), http://j.mp/jAQRfO. Along with many fellow practitioners, I have long been irked by the Department of Labor’s (DOL) continued erroneous and hypertechnical interpretation of the rule found in 20 C.F.R. §656.40(c). I first wrote on this issue in August 2009 on www.cyrusmehta.com, in my article entitled, “How the Definition of the Word “Begin” Could Affect Your PERM Application.” http://j.mp/k1e5e6.

The DOL has long interpreted 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the prevailing wage determination’s (PWD) validity period. The DOL has consistently denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. Rather than fight with the DOL (and suffer through the long wait in the appeals queue!), most employers simply conducted new recruitment and filed a new PERM application. In my article, I argued that the DOL’s interpretation of the rule was (1) overly narrow and contrary to the plain meaning of the regulation; and (2) contrary to the Employment and Training Administration’s (ETA) intent when promulgating the regulation which was to have the employer conduct at least one form of recruitment within the PWD validity period. I expressed the hope that a well-crafted Motion to Reopen and Reconsider would bring forth a more definitive statement from BALCA.

We finally have this statement in Matter of Horizon Computer Services! In this case, the employer began its earliest recruitment by placing a job order on January 22, 2007. The employer obtained a PWD with a validity period from January 25, 2007 to June 30, 2007. The employer filed the PERM application on July 20, 2007, after the PWD had expired. The DOL denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period and cited 20 C.F.R. §656.40(c) as authority for the denial. The employer fought back in a Request for Review and cited to the ETA’s notice of proposed rulemaking for PERM regulations wherein the ETA sought to explain the need for specific PWD validity periods and stated:

2. Validity Period of PWD
We are proposing that the SWA must specify the validity period of PWD on the PWD form, which in no event shall be less than 90 days or more than 1 year from the determination date entered on the PWDR. Employers filing LCA’s under the H-1B program must file their labor condition application within the validity period. Since employers filing applications for permanent labor certification can begin the required recruitment steps required under the regulations 180 days before filing their applications, they must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the PWD to rely on the determination issued by the SWA. Employment and Training Administration, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 CFR Part 656, 67 Fed. Reg. 30466, 30478 (May 6, 2002).

Based on the ETA’s statements, the employer in Matter of Horizon Computer Services argued that the ETA did not intend that the employer’s first recruitment step begin during the validity period but only that some recruitment step be initiated during that time. In fact, with the exception of the job order, the employer had initiated all of its recruitment during the PWD validity period.

BALCA agreed with the employer, vacated the DOL’s denial and held that the timing of the employer’s recruitment complied with the regulations and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA agreed that the ETA intended only that the employer initiate some recruitment during the PWD validity period and not the earliest recruitment.

Accordingly, under Matter of Horizon Computer Services, in order to rely on an expired PWD in the filing of a PERM application, the employer must have initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application.

Matter of Horizon Computer Services is an important decision especially at this time of the year when the DOL issues PWDs with only a narrow 90-day validity period. The DOL updates its prevailing wage databases on July 1st. PWDs issued around this time of year have only a 90-day validity period as opposed to PWDs issued after July 1st which are typically valid until June 30th of the following year. Employers who initiated recruitment prior to obtaining the PWD, initiated additional recruitment during the PWD’s 90-day validity period but were then unable to file the PERM application within the brief 90-day validity period of the PWD, would previously have had no recourse.

David Isaacson

IF EVEN THE CHIEF JUSTICE CAN MISUNDERSTAND IMMIGRATION LAW, HOW CAN WE EXPECT STATES TO ENFORCE IT PROPERLY? REMOVAL ORDERS AND WORK AUTHORIZATION

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By David A. Isaacson

In part of the Supreme Court’s recent decision in Chamber of Commerce v. Whiting upholding an Arizona law that imposed sanctions on employers (formally implemented as suspension or revocation of business licenses) for hiring “unauthorized alien” workers, the Court found that the Arizona law was not impliedly pre-empted because it tracks the federal definition of an “unauthorized alien” and insists that the state rely on the federal determination of an alien’s status. According to the majority opinion, written by Chief Justice Roberts, the verification of an individual’s “citizenship or immigration status” that the federal government is required to provide under 8 U.S.C. § 1373(c) is likely to be a sufficient determination under many circumstances. As the Chief Justice wrote for the Court, in response to the concern expressed in Justice Breyer’s dissent that § 1373(c) “says nothing about work authorization”:

But if a §1373(c) inquiry reveals that someone is a United States citizen, that certainly answers the question whether the individual is authorized to work. The same would be true if the response to a §1373(c) query disclosed that the individual was a lawful permanent resident alien or, on the other hand, had been ordered removed.

Chamber of Commerce v. Whiting, 563 U.S. ___ (2011), slip op. at 17.

The clear implication is that the Chief Justice, and the Court majority for which he wrote, believed that verification that an individual “had been ordered removed” would establish that individual’s lack of authorization to work. As explained below, this is incorrect. The fact that even the Chief Justice of the United States and a majority of the Supreme Court could make such a mistake is a vivid demonstration of the perils of involving non-specialists less qualified than Supreme Court Justices, such as state authorities, in determinations relating to immigration status and work authorization.

Under section 274A(h)(3) of the Immigration and Nationality Act (“INA”), the Attorney General and now the Secretary of Homeland Security have long had broad regulatory authority to determine who shall be authorized to work in the United States. That section says that “the term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” This subsection (B) power to authorize employment has been exercised through the promulgation of regulations at 8 C.F.R. § 274a.12 (and related regulations at § 274a.13-14), which list many categories of aliens who are authorized to be employed incident to their status or can apply for and receive employment authorization. Although the existence of a removal order or ongoing removal proceedings certainly is not itself a basis for employment authorization, there are many regulatory bases for employment authorization that are not inconsistent with the existence of a removal order.

Perhaps the most common way for someone to have valid employment authorization despite having been ordered removed is when the person who has been ordered removed is challenging the removal order in federal court by a petition for review filed in the federal Court of Appeals for the appropriate Circuit (say, the Second Circuit if the case took place in New York). Pursuant to 8 C.F.R. § 274a.12(c), when employment authorization is based on the pendency of an application, the “validity period for an employment authorization document . . . may include any period when an administrative appeal or judicial review of an application or petition is pending.” An asylum applicant who obtains employment authorization under 8 C.F.R. § 274a.12(c)(8), for example, may renew this employment authorization if the asylum application has been denied by an immigration judge and even the Board of Immigration Appeals (“BIA”), and the applicant has been ordered removed, but a court challenge to this denial of asylum and the accompanying removal order is pending. This seems only fair, given that it is hardly uncommon for a BIA denial of asylum to be overturned by a federal court, and the victim of this BIA error should not be denied the right to work while the error is being corrected—but it means that one who has been ordered removed, and whose order of removal has not yet been vacated by a court, may well have valid employment authorization.

The same scenario can arise when an applicant for adjustment of status under INA § 245 or cancellation of removal for nonpermanent residents under INA § 240A(b) has his or her application denied by an immigration judge and the BIA, is ordered removed, and petitions for judicial review of the order of removal under 8 U.S.C. § 1252(a)(2)(D) on the ground that a legal or constitutional error has been made by the BIA in adjudicating the application. An applicant for adjustment of status can apply for employment authorization under 8 C.F.R. § 274a.12(c)(9), and an applicant for cancellation of removal can do so under 8 C.F.R. § 274a.12(c)(10). Both would be entitled, pursuant to the introductory language in 8 C.F.R. § 274a.12(c), to renew this employment authorization while their federal court case was pending, despite the fact that they had been ordered removed.

Another way that someone who has been ordered removed can obtain valid employment authorization based on a pending application stems from an anomaly created by the BIA’s decision in Matter of Yauri, 25 I&N Dec. 103 (BIA 2009). In that case, the BIA recognized that USCIS often has jurisdiction over an application for adjustment of status filed by someone who has been ordered removed as an “arriving alien” (for example, after entering on advance parole based on a different application), but said that it would generally refuse to reopen such a removal order while the application for adjustment was pending before USCIS. That is, the BIA said that if, for example, someone enters on advance parole because of a pending employment-based adjustment application, then enters into a bona fide marriage with a U.S. citizen, and then is placed in removal proceedings following the denial of their employment-based adjustment application, an application for adjustment of status based on the marriage would go forward with USCIS independently of the removal proceedings before the Immigration Judge and BIA (in which the person would not be allowed to apply for adjustment of status based on the marriage as relief from removal). If someone who had already been ordered removed as an arriving alien more than 90 days ago applies for adjustment of status with USCIS, then according to Matter of Yauri, USCIS has jurisdiction to grant them adjustment of status notwithstanding the removal order, but in the meantime while the adjustment application is pending, the BIA generally will not reopen the removal order. Someone with a pending adjustment application as an arriving alien under Matter of Yauri, therefore, can have been ordered removed by an immigration judge and the BIA, and yet have a perfectly valid application for adjustment of status pending before USCIS, based on which they may have employment authorization under 8 C.F.R. § 274a.12(c)(9). The peculiarity of a pending application before USCIS, valid employment authorization, and an outstanding removal order all existing at the same time (even absent federal court involvement or some similar complication) may be an argument against the BIA’s refusal in Matter of Yauri to reopen removal orders based on applications for adjustment by an arriving alien, but as long as the rule of Matter of Yauri remains, this possibility will remain entirely plausible despite the applicant’s best efforts to resolve his or her situation.

Yet another way for people who have been ordered removed to have valid employment authorization is if their removal to particular countries (usually their countries of nationality) has been withheld under INA § 241(b)(3) or under the Convention Against Torture, because they would, more likely than not, face persecution or torture in those countries. This often occurs, for example, when an otherwise meritorious application for asylum is rejected as untimely under the one-year deadline of INA § 208(a)(2)(B). Someone who has been granted withholding of removal can theoretically be removed to another country besides the country of feared persecution or torture, but it is very rare for this to happen in practice, since most countries will not simply volunteer to accept a deportee with whom they have no previous connection. While they remain in the United States for lack of a third country willing to accept them, withholding of removal grantees are entitled to employment authorization pursuant to INA § 274a.12(a)(10). They too, therefore, will be authorized to work despite the fact that they have been ordered removed.

In addition, there is a section of the regulations that explicitly contemplates the issuance of employment authorization to certain people who have been ordered removed simply because the order of removal cannot be executed, even when withholding of removal to a particular country has not been granted due to the threat of persecution or torture. Pursuant to 8 C.F.R. § 274a.12(c)(18):

An alien against whom a final order of deportation or removal exists and who is released on an order of supervision under the authority contained in section 241(a)(3) of the Act may be granted employment authorization in the discretion of the district director only if the alien cannot be removed due to the refusal of all countries designated by the alien or under section 241 of the Act to receive the alien, or because the removal of the alien is otherwise impracticable or contrary to the public interest. Additional factors which may be considered by the district director in adjudicating the application for employment authorization include, but are not limited to, the following:
(i) The existence of economic necessity to be employed;
(ii) The existence of a dependent spouse and/or children in the United States who rely on the alien for support; and
(iii) The anticipated length of time before the alien can be removed from the United States.

For this reason, as well, one who has been ordered removed may nonetheless be authorized to accept employment.

It was therefore incorrect for the Court in Whiting to say that it “answers the question whether the individual is authorized to work . . . . if the response to a §1373(c) query disclosed that the individual . . . had been ordered removed.” An individual may have been ordered removed, and yet nonetheless be authorized to work pursuant to 8 C.F.R. § 274a.12(a)(10), 8 C.F.R. § 274a.12(c)(8), 8 C.F.R. § 274a.12(c)(9), 8 C.F.R. § 274a.12(c)(10), or 8 C.F.R. § 274a.12(c)(14)—and even this is not intended as an exhaustive list of the regulatory provisions authorizing employment that may be applicable to someone against whom an order of removal has been entered. Disclosure that an individual has been ordered removed simply does not foreclose the possibility that the same individual is authorized to work.

The fact that even the Chief Justice of the United States could make this mistake may shed some light on why the prospect of state officials attempting to implement immigration law strikes many attorneys who work in the immigration field as highly inadvisable. Immigration law, both in the area of employment authorization and in other areas, is highly complex, and can confuse even specialists or legal generalists of the highest caliber. It seems reasonable to say, without fear of insult, that the legal education and acumen of most state law-enforcement officials as it relates to matters of federal law is often not going to meet the high standard required of a Justice of the U.S. Supreme Court. Thus, implementation of immigration law by such state officials is likely to lead to frequent errors.

Cora-Ann Pestaina

BALCA ON USING A RANGE OF EXPERIENCE IN RECRUITMENT

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Cora-Ann Pestaina

As the Board of Alien Labor Certification Appeals (BALCA) continues to pump out decision after decision, it can be difficult to find time to review each case. But I am constantly being reminded that reviewing that one BALCA decision could truly mean the difference between approval and denial. I recently came across the BALCA decision in CCG Metamedia, Inc., 2010-PER-00236 (Mar. 2, 2011) and it raised some red flags with regard to previous recruitment practices that have not faced objection from the DOL. As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence.

In CCG Metamedia, the employer filed an Application for Permanent Employment Certification (ETA Form 9089) for the position of “Technical Design Director” indicating that the job opportunity required 2 years of experience. In response to an Audit Notification, the employer submitted evidence of recruitment, which indicated that the employer had placed advertisements in a newspaper of general circulation, a local newspaper and on the employer’s website stating that the job opportunity requires “2-4 years of experience.” The Certifying Officer (CO) denied certification on grounds, which included that these advertisements contained experience requirements in excess of those listed on the employer’s PERM application.

The employer filed a Request for Reconsideration arguing that the “Technical Design Director” position indeed requires “2-4 years of experience” but that the ETA Form 9089 requires the employer to list a whole number and does not provide space to list a range of experience, thus forcing the employer to indicate only 2 years of experience. The employer also relied on Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009). In Federal Insurance, the fact that certain mandatory language pertaining to an alternative requirement under Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc), did not appear on the ETA Form 9089 was not fatal as there is no space on the Form for such language. BALCA held that a denial in that instance would offend fundamental fairness and due process. The employer in CCG Metamedia argued similarly that because the ETA Form 9089 does not accommodate its ability to express the requirement of 2-4 years minimum experience, it would “offend fundamental due process to deny the PERM application for failure to write the attestation on the ETA Form 9089.”

In forwarding the case to BALCA, the CO asserted, in a letter of reconsideration included in the Appeal File, that the employer’s advertisements did not represent the actual minimum requirements as required under 20 C.F.R. §656.17(i)(1). The CO argued that the employer’s requirement of “2-4 years of experience” communicated to the job applicant “a preference” that he or she possess more than 2 years of experience in order to qualify for the position and thus may have discouraged applications from US workers who met the minimum requirements (i.e. 2 years of experience). The CO further argued, citing The Frenchway Inc., 2005-INA-451, slip op. at 4 (Dec. 8, 1997), that BALCA has held that “employer preferences are actually job requirements.” The CO dismissed the employer’s arguments with regard to the ETA Form 9089 simply stating that the case was not about the shortcomings in the ETA Form 9089.

BALCA affirmed the CO’s denial of the case and held that “stating a range of experience in the recruiting materials that goes above the minimum experience requirements stated in the application inflates the job requirements in the job advertisements and does not accurately reflect the employer’s attestations on the ETA Form 9089.” BALCA cited the regulations at 20 C.F.R. §656.17(f)(6), which require that a newspaper advertisement “[n]ot contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089” and held that the employer was in violation of the regulations. BALCA agreed with the CO that this case was not about the shortcomings in the ETA Form 9089 but instead, was about the fact that the employer did not conduct an adequate test of the labor market because minimally qualified US applicants were discouraged from applying for the position. BALCA distinguished this case from Federal Insurance where the employer did not know how to comply with the requirement that Kellogg language be included on the ETA Form 9089 and stated that unlike Federal Insurance, in CCG Metamedia, the Form specifically requested the number of months of experience required for the job opportunity and this must be a discrete number, and not a range, because of the fact that the employer must state its actual minimum requirements.

After reading CCG Metamedia, one wonders whether this was correctly decided. The employer argued that its requirement for the job opportunity was indeed “2-4 years of experience” and that it was simply forced to indicate 2 years on the ETA Form 9089. But isn’t it implicit in a requirement of “2-4 years of experience” that the employer’s minimum requirement is 2 years of experience thus making the requirement listed on the recruitment and the ETA 9089 entirely consistent? The employer will clearly accept, at a minimum, 2 years of experience and a person with any level of experience upwards of 2 years (i.e. 2.5, 3 or 4 years) in the relevant area could potentially qualify for the position. The CO and BALCA claim that US workers could have been discouraged from applying for the position because the requirements indicated a “preference” that the job applicants have more than 2 years of experience. But how is this “preference” indicated? How can “[from] 2 [to] 4” be interpreted to mean “more than 2” such that a US worker would be discouraged from applying for the position? The CO and BALCA cited The Frenchway, Inc.’s for its holding that employer “preferences” are indeed requirements. But I would argue that the facts of CCG Metamedia are entirely distinguishable from those of The Frenchway, Inc. where the employer listed its preferences for a foreign language and European contacts. Clearly, a US worker with no foreign language skills and no European contacts could have been discouraged from applying for the position. On the contrary, based on the facts in CCG Metamedia, a US worker with 2 years of experience ought to have considered himself qualified based on the requirement of “2-4 years of experience.”

CCG Metamedia likely seems to imply that employers can no longer advertise seeking “2+” or “5+” years of experience as requiring applicants to have the minimum experience or more would also be perceived as a “preference, ” which will discourage applicants possessing the minimum experience from applying for the position. This would be absurd, but in labor certification land, an employer should now advertise asking for the exact years of experience for the position after CCG Metamedia. Two other recruitment scenarios immediately come to mind.

Take the case of a big corporation, recruiting for professional positions, which places an omnibus advertisement in a newspaper of general circulation indicating that it is “seeking individuals with Bachelor’s or Master’s degrees and relevant experience for the following positions” and lists all the positions, e.g. Software Engineer, Lead Technical Consultant, etc. including a brief description of the job duties for each position. All other requirements under 20 C.F.R. §656.17(f) are met. All additional professional recruitment contains the job requirements specific to each job opportunity, such as “Bachelor’s degree in Computer Science or a related field and 5 years of experience in the offered position or in a position performing similar duties.” In addition, the ETA Form 9089 filed for each particular position indicates the specific job requirements for that position. In light of the holding in CCG Metamedia, will the DOL now deny these PERMs on the basis that the newspaper advertisements violated 20 C.F.R. §656.17(f)(6) and indicated an impermissible range (Bachelors or Master’s degree) which discouraged US workers from applying for the job opportunities?

I would argue that the ‘either/or’ requirement indicated in “a Bachelor’s or a Master’s degree and relevant experience” is not a “range.” Thus, the potential applicant cannot reasonably be confused into thinking that a position requires a Master’s degree when in actuality the employer requires only a Bachelor’s degree. Furthermore, because the ad only states “and relevant experience” it cannot be argued that US workers were discouraged from applying for any of the positions due to a perceived lack of sufficient experience. A US worker with either a Bachelor’s or a Master’s degree and even less than one year of experience should feel encouraged to apply based on the requirements listed in the newspaper advertisement. Since the employer is essentially casting a wider net, it ought to be difficult for the DOL to assert that an adequate test of the labor market was not conducted.

In another scenario, an employer is conducting recruitment for a professional position that requires a Master’s degree in Chemistry and no experience and wants to recruit using a university’s campus placement office as one of the three additional recruitment steps for professional occupations required under 20 C.F.R. § 656.17(e)(1)(ii). The university’s website allows the employer to place its advertisement but requires that certain fields be filled, e.g. job location, job status (full-time or part-time), writing sample required (yes or no), etc. One of the fields asks “experience required?” and forces the employer to pick from a list of choices limited to “0-2 years”, “3-5 years” or “over 5 years.” Based on the holding in CCG Metamedia, if the employer chooses “0-2 years” for this advertisement and then indicates on the ETA Form 9089 that the position requires no experience, the employer will have listed job requirements in excess of the requirements listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6). (Recall that in Credit Suisse Securities (USA) LLC, 2010-PER-00103 (BALCA Oct. 19, 2010) BALCA held that the advertising requirements listed in 20 C.F.R. §656.17(f) for advertisements placed in newspapers of general circulation or in professional journals also apply to website advertisements.) But what if it is not feasible for the employer to conduct a different type of recruitment or to choose a different university’s campus placement office? The employer may be able to protect itself against a CCG Metamedia type denial by indicating in the job description that the job opportunity requires a “Master’s degree in Chemistry and NO EXPERIENCE IS REQUIRED.” It would be difficult for the DOL to argue that US workers with no experience were discouraged from applying for this position.

I was recently confronted with a scenario similar to scenario No. 2 above and based on CCG Metamedia I suggested that new recruitment be conducted. I am reminded that regardless of previous success utilizing a particular method or type of recruitment, we cannot afford to become comfortable with the ever-changing PERM process and that these BALCA decisions provide invaluable insight into continuing to avoid the pitfalls of PERM. For a detailed overview of recent BALCA decisions that provide practice pointers, see Cyrus D. Mehta’s article, ANALYSIS OF SELECTED RECENT BALCA DECISIONS AS PRACTICE POINTERS TO AVOID PERM DENIALS

David Isaacson

POTENTIAL IMMIGRATION IMPLICATIONS FOR SAME-SEX COUPLES OF JUSTICE DEPARTMENT’S ANNOUNCEMENT REGARDING DOMA SECTION 3

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By David A. Isaacson

The Justice Department announced Wednesday, that, based in part on the recommendation of Attorney General Eric Holder, President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, and will no longer defend it in court. This is because, facing litigation within the jurisdiction of a circuit court of appeals (the Second Circuit) that has never ruled on the appropriate standard of review to be applied to laws concerning sexual orientation, the Administration determined that a heightened standard of review is appropriate, and that Section 3 of DOMA cannot withstand review under such a standard (although the Justice Department had previously argued that Section 3 could survive the looser rational-basis test applicable under the precedent of some courts of appeals). The announcement is available online at http://www.justice.gov/opa/pr/2011/February/11-ag-222.html, and a related letter sent by Attorney General Holder to Speaker of the House John Boehner is available at http://www.justice.gov/opa/pr/2011/February/11-ag-223.html. The announcement states, however, that Section 3 of DOMA will remain in effect until either it is repealed or “there is a final judicial finding that strikes it down,” and until such time “the Executive Branch will continue to enforce the law.” The letter to Speaker Boehner states even more specifically that “the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality.”

Section 3 of DOMA, 1 U.S.C. § 7, provides that for purposes of federal law, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Among other consequences under federal law, this means, according to the consistent interpretation of USCIS and the former INS, that a same-sex spouse cannot be granted immigration benefits by virtue of his or her marriage to a U.S. citizen or lawful permanent resident. This aspect of DOMA, as interpreted in a 2003 memorandum by William Yates of USCIS, was discussed in a March 2004 web article by Cyrus D. Mehta (http://blog.cyrusmehta.com/News.aspx?MainIdx=ocyrus200591724845&Month=&Source=Zoom&Page=1&Year=All&From=Menu&SubIdx=964).

The recent Administration announcement suggests that, following successful litigation, same-sex spouses whose marriages are recognized by their state of residence may find themselves able to seek immigration benefits based on their marriages, although this will for the moment not be possible without litigation given the Administration’s position that Section 3 of DOMA will continue to be enforced until a court declares it unconstitutional. Litigation is not certain to succeed, however, because Congress or individual members of Congress may intervene to defend the constitutionality of DOMA. Indeed, one of the purposes of the statutory provision, 28 U.S.C. § 530D, that required Attorney General Holder’s notification to Speaker Boehner was to enable such defense by a House of Congress or individual members, and the Attorney General said of the pending challenges to Section 3 of DOMA in his letter that Justice Department attorneys “will also notify the courts of our interest in providing Congress a full and fair opportunity to participate in the litigation in those cases.” Moreover, there is some risk that any challenge to Section 3 of DOMA could be less likely to succeed in the immigration context than in other contexts, given the “plenary power” doctrine and the history of judicial deference to Congress in this context – as in Fiallo v. Bell, 430 U.S. 787 (1977), where the Supreme Court upheld a provision of the INA that discriminated against illegitimate children – although it is also possible that Section 3 of DOMA will be voided in all contexts by a judicial holding that it is, as a general matter, unconstitutional.

Given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be quite risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student). This risk and others were discussed in more detail in a July 8, 2010 advisory from Gay and Lesbian Advocates and Defenders (GLAD) following their victory in a district court case challenging Section 3 of DOMA, http://www.immigrationequality.org/template.php?pageid=1115.

Same-sex spouses of U.S. citizens or lawful permanent residents who are already in removal proceedings, however, should consider seeking adjustment of status under INA § 245 based on an I-130 petition filed by their spouse if they are otherwise eligible for that relief, and/or cancellation of removal under INA § 240A(b) based on the hardship to their spouse if they were to be removed if they are otherwise eligible, and preserving the issue for judicial review. Similarly, same-sex couples who are not yet married could consider moving to a state that recognizes same-sex marriages if they do not reside in one already, entering into a state-recognized marriage, and seeking adjustment of status or cancellation of removal for the non-U.S.-citizen spouse based on that marriage—bearing in mind that like any other marriage, a same-sex marriage could only be a basis for immigration benefits if it were established to the satisfaction of the immigration authorities that such a marriage was bona fide, that is, was truly meant to establish a shared life together rather than being done purely for immigration purposes, and that in the case of adjustment of status based on a marriage entered into while one spouse is in removal proceedings, INA sections 204(g) and 245(e) would require a showing by clear and convincing evidence that the marriage was not entered into for immigration purposes. The concerns raised by GLAD in its previous advisory continue to apply, however, and it is therefore this author’s view that the preferable course in cases where removal proceedings have not already been commenced would generally be to await further developments before filing any petition or application based on a same-sex marriage.

Cora-Ann Pestaina

BALCA ON EMPLOYEE REFERRAL PROGRAMS UNDER PERM

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Cora-Ann V. Pestaina

I first wrote on the subject of the employee referral program with incentives in April 2010 shortly after the Department of Labor announced at a stakeholders teleconference that it had established criteria about the employee referral program, http://cyrusmehta.blogspot.com/2010/04/dol-update-on-perm-and-prevailing-wage.html. The Board of Alien Labor Certification Appeals (BALCA) recently issued two decisions that mostly adopt the DOL’s new requirements regarding employee referral programs, which is the subject of this article. Indeed, BALCA has been very busy recently issuing many decisions, http://bit.ly/elYpsb, in various aspects of labor certification practice, and it is incumbent on all stakeholders to keep up with them to avoid the pitfalls resulting in the denial of the application.

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. An employee referral program is one of the recommended recruitment steps under 20 C.F.R. §656.17(e)(4)(ii)(G) that an employer may undertake to establish that it made a bona fide effort to recruit qualified US workers.

Previously, employers had been allowed to utilize their existing employee referral program and to document its use by submitting a description of the program. In response to audits, the DOL had previously accepted photocopies of pages from employees’ handbooks describing the ongoing program. This clearly complied with 20 C.F.R. §656.17(e)(4)(ii)(G), which states, “The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” At the stakeholders teleconference, the DOL indicated for the first time that it would henceforth require more from employers who utilize the employee referral program in fulfillment of one of the three additional forms of recruitment required for professional positions under the current labor certification process known as PERM. In August 2010, the DOL published PERM FAQ 11 (available at http://www.foreignlaborcert.doleta.gov/pdf/PERM_Faqs_Round_11_08032010.pdf) wherein its new requirements were clearly imposed.

Although 20 C.F.R. §656.17(e)(1)(ii)(G) does not so require, PERM FAQ 11 set forth that the DOL now requires the employer to document its use of an employee referral program by providing dated copies of its notices or memoranda advertising the program and specifying the incentives offered and document that employees were made aware that they could refer applicants to the specific position sponsored under the PERM labor certification application. For example, employees may be notified via the employer’s internal website. But the DOL specifically, without explanation, excluded the Notice of Filing provided to satisfy 20 C.F.R. §656.10(d) as being sufficient for this purpose. In Clearstream Banking, S.A., 2009-PER-15 (Mar. 30, 2010), BALCA established that an ongoing intranet posting is acceptable to communicate the program provided it could be established that there was an employee referral program with incentives.

Throughout 2010, there continued to be various anecdotal reports of DOL audits focused on the use of the employee referral program. Now, two recent BALCA cases have shed some additional light on the use of employee referral programs.

In Matter of Sanmina-Sci Corporation, 2010-PER-00697, (Jan. 19. 2011), the DOL Certifying Officer (CO) found that the employer failed to provide adequate documentation of its employee referral program with incentives. The employer had provided the DOL with a flyer titled “Employee Referral Program” dated July 10, 2000 announcing the incentives and an Employee Referral Program Form dated “Rev. 10/31/03.” The CO cited 20 C.F.R. §656.17(e)(1)(ii) in support of the finding that these dates did not fall within the recruitment period of 30 to 180 days prior to the filing of the labor certification. The employer argued, in its request for review and appellate brief to BALCA, that it provided adequate documentation under the standard set forth for an employee referral program in 20 C.F.R. §656.17(e)(4)(ii)(G). The employer had clearly specified the incentives of the employee referral program, the dates of the program and the fact that the program was in effect as of the date of the recruitment report. The employer argued that the facts of its case were similar to Clearstream Banking, S.A., where BALCA stated, “…a generic employee referral program with incentives, the description of which is available to employees may be sufficient to be a step under section 656.17(e)(1)(ii)(G), even if the particular job for which labor certification is being sought is not individually promoted under the program.” The employer pointed out that although the regulations do not require that the PERM position be specifically promoted under the employee referral program, its advertisement of the job on its career web page was sufficient to make employees aware of the opening.

First, BALCA rejected the CO’s argument that the employee referral program was dated outside the recruitment period of 30 to 180 days prior to filing the PERM application. BALCA pointed out that 20 C.F.R. §656.17(e)(1)(ii)(G) only requires dates establishing that the program was in existence at the time of the recruitment for the PERM position and it cannot be reasonably interpreted to require that the dates on the program fall within the specified periods for other forms of recruitment, such as Sunday newspaper advertisements or a job order on the DOL’s own job bank website. Then, BALCA held that in order for an employer to adequately demonstrate its compliance with 20 C.F.R. §656.17(e)(1)(ii)(G), it must document that (1) its employee referral program offers incentives to employees for referral; (2) the program was in effect during the PERM recruitment period; and (3) the employees were on notice of the job opening.

BALCA soon spoke again on the subject of the employee referral program and held, in Matter of AQR Capital, 2010-PER-00323 (Jan. 26, 2011), that the employer had adequately provided evidence in support of each of the three elements set forth in Matter of Sanmina-Sci Corporation. The employer’s PERM application indicated that it utilized its employee referral program as one of the three additional recruitment steps to advertise for the professional PERM position. The PERM application indicated that the employer advertised with the employee referral program from July 10, 2007 to August 10, 2007. Upon audit, the employer documented its use of an employee referral program by submitting an undated notice of its program which described the incentives offered. The employer’s recruitment report also indicated that 45 (out of a total of 49) applicants for the PERM position had learned about the position through the employee referral program. The CO denied on the ground that the employer did not submit dated copies of the program.

BALCA reiterated that the dated copies referred to in 20 C.F.R. §656.17(e)(1)(ii)(G) are solely for the purpose of establishing that the employee referral program existed at the time of recruitment for the PERM position and not to prove that the dates on the program fell within the same specified recruitment period applicable to other forms of recruitment. BALCA held that (1) the employer submitted a copy of its employee referral program that specified incentives offered; (2) although the program was not dated, the employer’s audit response contained sufficient evidence to demonstrate the existence of the program during the recruitment period; and (3) that the employer’s employees were on notice of the particular job opening. In light of the fact that more than 90% of the applicants for the PERM position learned about it through the employee referral program, BALCA determined it would be ludicrous to question the program’s existence and effectiveness.

BALCA is well aware that, with the exception of requiring dated copies of the employee referral program, it has basically adopted the requirements set forth in PERM FAQ 11, despite the DOL’s possible violation of the Administrative Procedure Act (APA), P.L. 79-404, which prohibits the imposition of new requirements without providing an opportunity for notice and comment. In Matter of Sanmina-Sci Corporation, BALCA specifically addressed this in a footnote but stated that the CO could not be assured that the recruitment step had any connection to an employer’s specific efforts to fill the PERM position and therefore it is implicitly required that the employer provide documentation to show that the employee referral program was in effect during the recruitment period and that employees were aware of the opening.

In light of these two recent cases, my previous advice on this issue still stands. Employers may want to consider adding an “available positions” section at the end of the employee referral program description, including a copy of the specific PERM ad(s) and posting the program in a conspicuous location on the business premises for a specific number of days (and publishing via employer’s intranet, if any) as they do with the Notice of Filing required under 20 C.F.R. §656.10(d). Interestingly, BALCA, in Matter of Sanmina-Sci Corporation, also expressed some bafflement over the fact that the employer’s Notice of Filing cannot be used to prove that employees were made aware of the specific PERM position. However, in that case, since the employer also had an internal web posting, BALCA declined to address the question of whether the Notice of Filing, standing alone, could serve as proof that employees were made aware of the position for which the PERM application was filed.

Posting the employee referral program with an “available positions” section will establish both that the program was in effect during the PERM recruitment period and that the employees were on notice of the job opening. It would also be a good idea to execute a brief memorandum confirming the existence of the employee referral program, describing how the company’s employees were made aware that they could refer applicants to the specific PERM position and listing how many applications, if any, were received. In this manner, employers can be certain that they have done enough to survive an audit. Well, at least until the next rule change.