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7 Points To Remember Regarding Resume Review In The PERM Process

The employer’s review of resumes received from applicants continues to be one of the trickiest issues in the PERM labor certification process. The process might seem straightforward enough because, after all, employers filing PERM applications are likely quite used to evaluating resumes from applicants. But such thinking is probably where the first wrong step is taken. I last blogged on this issue on December 2012 and my blog entitled, Resume Review in the PERM Process is still very relevant. However, I find that this issue continues to be a problematic one and worthy of a follow up.  Improper resume review continues to be one of the Department of Labor’s (DOL) most popular reasons for PERM denials.

By way of background, under the Immigration and Nationality Act, the DOL has a statutory responsibility to ensure that no foreign worker is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. INA §212(a)(5)(A)(i). The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith.  Under 20 C.F.R. §656.10(c), the employer must certify that U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons. While the DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process, operating under this belief will most likely lead to problems.  I have always found that it is infinitely more effective to counsel the employer not to consider PERM as resembling any type of real world recruitment process whatsoever.

Review of the Board of Alien Labor Certification Appeals (BALCA) is a good place to stay up to date on the DOL’s reasoning on any PERM issue. Based on recent BALCA decisions, here are 7 points regarding resume review that are worth discussing with the employer at the outset of the PERM process, even before the job duties and requirements are finalized and the advertisement is drafted.

1.   Be certain that use of the Kellogg language is warranted and reflective of the actual   minimum requirements for the offered position.

2.   An applicant cannot be rejected simply because their cover letter or resume clearly states that they are seeking a completely different position.

In Global Teachers Research and Resources, Inc. 2015-PER-00396 (March 30, 2017), the employer’s job requirements for the position of Elementary Teacher were a Bachelor’s degree in Elementary Education and 60 months of experience in the job offered.  In addition, the qualified applicant also had to demonstrate eligibility for a Georgia Teaching Certificate. In section H.14 of the ETA Form 9089, the employer had also listed, “Employer will Accept any Combination of Experience, Training or Education.” This is commonly referred to as the Kellogg language based on Matter of Francis Kellogg, 1994-INA-465 (Feb. 2, 1998) (en banc).

After reviewing the employer’s response to an audit, the DOL denied the PERM application finding that the employer failed to properly consider one applicant who possessed a Master’s degree in Education/Special Education, 60 months of experience and a GA teaching license. The Certifying Officer (CO) reasoned that since the employer had indicated “Employer will Accept any Combination of Experience, Training or Education” then the employer had to consider the applicant even if she did not have a degree in Elementary Education. Oftentimes, an employer will insert the Kellogg language on the ETA Form 9089 when it is totally unnecessary. It is important to remember that this is specific language that is only required on the ETA Form 9089 when the foreign national qualifies for the offered position only on the basis of the employer’s alternative requirements. In addition, Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) held that the failure to include this language was not fatal as there is no space on the form for such language. Some employers recall receiving PERM denials due to lack of this language prior to the decision in Federal Insurance and, not fully comprehending the issue, they feel better to just include it. It is therefore very important to discuss the meaning of the Kellogg language with the employer and whether the insertion of this language would reflect the employer’s true minimum requirements for the offered position.

The employer in Global Teachers Research and Resources filed a request for reconsideration and argued that the applicant had clearly indicated on her resume that she was seeking employment as Special Education Teacher and that this information prevented them from actually considering applicant for the offered position. However, BALCA held that since the Applicant had applied for the Elementary Teacher position and since it would be illogical for a person to apply for a position in which they were not interested, the employer was obligated to give the application due consideration. Citing a long list of precedent decisions which would make for required reading, BALCA held that an applicant is presumed to be interested in a job for which he or she applies.

3.    Be careful of rejection for lack of an unstated, “inherent” requirement.

4.    Even if an applicant may lawfully be rejected for various reasons, always list ALL   reasons for rejection in the recruitment report.

 In Matter of Los Angeles Unified School District, 2012-PER-03153 (Jan. 23, 2017) the employer recruited for the position of “Teacher, Special Education” for which it required a Bachelor’s degree in any field, a valid California Education Specialist teaching credential, and no training or experience.  After two audits, the PERM application was denied because the employer rejected an applicant finding that the applicant failed to meet the minimum requirements for the offered position because the applicant had a below satisfactory performance evaluation on her most recent student-teaching assignment.

The employer requested reconsideration and, listing several pre-PERM administrative law decisions, argued that some qualifications are simply inherent and need not be expressly stated in the job description. The employer argued that the ability to “teach special education classes competently” is one such inherent requirement that need not be expressly stated. The employer also pointed to a negative confidential reference from the applicant’s most recent teaching assignment.

BALCA dismissed all of the administrative law decisions as non-binding and stated that the PERM program demands strict compliance with the regulations which require that the job requirements described on the ETA Form 9089 represent the employer’s actual minimum requirements for the offered position. BALCA found it debatable whether one negative performance evaluation over the course of a career could demonstrate a lack of competency. But ultimately, since nothing in the employer’s stated minimum requirements indicated that an applicant cannot have a negative performance evaluation or a negative reference of any kind, BALCA found the rejection of the applicant to be unlawful. Basically, any qualification that can form the basis of a rejection ought to be listed in the advertisement. If it is not, then it cannot be used as the basis for a rejection.

However, this decision does not make sense as every inherent skill cannot be listed in the advertisement, the ability to speak English, being the prime example. There are a line of cases to support this proposition. See Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410 (5th Cir 1989), Matter of Ron Hartgrove, 1989 BALCA Lexis 6 (BALCA May 31, 1989), Matter of La Dye & Print Works, 1995 BALCA LEXIS 59 (BALCA April 13, 1995).

In its appellate brief the employer had also tried to insert a new argument that the applicant was also not qualified because she did not have the required teacher credential. The employer stated that it did not initially consider this but that is nevertheless a basis for rejection. BALCA dismissed this evidence finding that its review is restricted to timely submitted evidence that was part of the record when the CO made his decision. It is therefore very important that an employer conduct a complete review of each applicant’s qualifications and list each and every lawful reason for rejection of any applicant. In the instant case, despite the employer’s rejection for lack of what it considered to be an inherent requirement, if the employer had also lawfully rejected the applicant for lack of the teaching credential and demonstrated that the applicant indeed lacked the credential, the PERM might not have been denied.

5.     Never put the duty to follow up on the applicant.

Matter of Unisoft International, Inc. 2015-PER-00045 (Dec. 29, 2016) is a supervised recruitment case.  The offered position was that of Network Administrator. The employer’s PERM application was eventually denied for four reasons but only reason number 4 regards resume review. Essentially, the CO found that the employer did not conduct a good-faith recruitment effort because the employer sent out a form letter to each of 20 applicants. This letter stated, “After a preliminary review of your resume, we have determined that you do not have a few of the desired skills we are looking for including experience with MCP and SPO for OS2200.” Putting the onus of additional communication on the applicant, the letter then stated, “Please contact us immediately to schedule an interview if you do have these qualifications.” The CO found that the employer had failed to “intensively” recruit and had not sufficiently established that there were no US applicants who were able, willing, qualified and available to perform the work.

BALCA pointed to case law which held that an employer may lawfully reject an applicant when the resume is silent on whether he or she meets a major requirement such as a college degree. However, when the qualification is something a candidate may not indicate explicitly on his or her resume though he or she possesses it, the employer carries the obligation to inquire further whether the applicant meets the requirements.  BALCA found that the employer had rejected these 20 candidates because they did not list a subsidiary requirement on their resumes and the employer had an obligation to inquire further. The employer’s letter to these 20 applications did not fulfill this obligation because it placed the responsibility of following up and requesting an interview on the shoulders of the applicants.  Moreover, BALCA found that the employer failed to inquire whether there were any available training options for these candidates especially for two candidates who the CO identified as already possessing networking experience. BALCA found that the employer’s letters to the candidates were perfunctory and not made in good faith.

This case displays another strong example of how resume review in the PERM process does not resemble resume review in the real world. In the real world, an applicant is expected to demonstrate his or her actual interest in the offered position. In the real world, putting the onus of additional communication on the applicant could very well be a test of the applicant’s dedication and interest. No so under PERM. In the PERM process, the employer has to understand that it must bend over backwards to ensure that it has done everything in its power to fully determine whether an applicant is qualified for the offered position notwithstanding that applicant’s failure to respond to a telephone call (email and then send a certified letter); that applicant’s lack of awareness of who the employer is or of the offered position (the employer must now inform them again!);  or that applicant’s request to be contacted at a later time (the employer must comply!).

6.     Over qualification is never a lawful reason for rejection.  

7.     An applicant may be rejected based on their unwillingness to accept the salary only if the employer can show that the employer offered the position to the applicant at the listed salary and the applicant then refused to accept the position.

BALCA has long held that an employer may not reject a US worker applicant based on a belief that the applicant is over qualified for the position. This is still one rejection reason that almost all employers instinctively want to use. And again, this is where the PERM process breaks away from the real world. It is hard for most employers to comprehend why the DOL would require that they classify as qualified, an applicant who clearly would be taking a “step down” because their qualifications indicate that they are qualified for a higher level position. Employers feel that such applicant use lower level positions as a stepping stone. However, BALCA has always held that such applicants are qualified to perform the core job duties. See Bronx Medical and Dental Clinic, 1990-INA-00479 (Oct, 30, 1992) (en banc) and most recently, Kohn Pedersen Fox Associates PC, 212-PER-02772 (Nov. 25, 2016).

Also in Kohn Pederson Fox Associates, the employer, having advertised listing the offered salary, then rejected applicants who applied for the position requesting a higher salary. While the employer’s reasoning here makes real world sense, BALCA held that an employer may reject a qualified US applicant as unwilling to accept the position at the offered wages only if the position was actually offered to the applicant and the applicant refused to accept the position at the offered wages.  The employer must have documentation of the offer and refusal.

Overall, employers must always bear in mind that the DOL serves to protect the interests of the US worker. Accordingly, while the real world may be a dog eat dog world where one typo can cause an applicant’s resume to quickly hit the trash, in the PERM world, applicants must almost be cuddled. The employer must set aside all normal reasoning; all normal industry expectations; all expectations that a US worker applicant can understand basic things like a requirement for 2-3 years of experience means that 2 years would be acceptable. The employer must consider what is in the best interest of the US worker applicant and ensure that it has sufficiently described the offered position and all its requirements to fully apprise the US worker of all he or she needs to know in order to determine whether to apply for the position. Once that application has been received, the employer is obligated to examine every aspect of that applicant’s qualification; to reach out to that applicant using multiple forms of communication if the most convenient form fails; to verify that the applicant, though lacking in a certain requirement cannot be trained within a reasonable time; and to remember, above all else, that the employer is never supposed to seek the “best” candidate for the position, but rather, must consider a candidate qualified if he or she even barely meets the stated minimum requirements.

BALCA Holds That Failure To Disclose A ‘Wage Adjustment’ Is Not A Valid Denial Ground

Recently, in the representative case, Matter of Cognizant Technology Solutions US Corp, 2013-PER-01488 (BALCA, September 29, 2016), the Board of Alien Labor Certifications Appeals (BALCA) reversed 382 PERM denials finding, most significantly, that the employer’s failure to apprise US workers of its wage adjustment – a variable amount of money to be paid to the employee depending on where they’re geographically based – was not a valid ground for denial.

In the representative case, the employer, in response to an audit notification, submitted a copy of an offer letter that was sent to a U.S. applicant. This offer letter stated a base salary of $117,707.20 and also described a “Cost of Labor Adjustment” or “COLA” as follows:

As eligible, you may be paid a geographically based Cost of Labor Adjustment (COLA) of $250.00 per pay period for Washington, D.C., which is an annualized amount of $6,000. Your COLA on the 15th and last day of each month in accordance with the Company’s current payroll policies and practices, along with your regular base salary. [sic] If your work location changes, then there will be an adjustment to COLA effective the first day of work in your new work location. COLA is subject to regular review and may be increased or decreased, or replaced by another compensation component upon certain promotions.

The Certifying Officer (CO) found that the employer’s Notice of Filing (NOF), which advised of a long and short term travel requirement, failed to also appropriately apprise US workers of the actual terms and conditions of employment. The CO found that the NOF violated 20 CFR §656.17(f)(3) which states that advertisements must “provide a description of the vacancy specific enough to apprise the U.S. worker of the job opportunity for which certification is sought” and 656.10(d)(4) which requires that the NOF “contain the information required for advertisements by §656.17(f).” The CO also found that the job order, Sunday newspaper advertisements, local newspaper advertisement, job search website advertisement and private employment firm advertisement failed to apprise US workers of the COLA and therefore did not appropriately apprise them of the job opportunity in violation of 656.17(f)(3). The CO, in denying the application, held that US workers were not properly notified that they would be appropriately compensated based on the specific geographic area of assignment, which could have impacted whether or not they were willing to apply for the job opportunity.

In its Request for Reconsideration/Request for Review, the employer argued that COLA was a “per diem benefit payment” which did not need to be disclosed based on BALCA’s previous decision in Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011). In Emma Willard, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. I previously blogged about this decision here. The employer argued that COLA is a not a guaranteed benefit and can be increased, decreased or replaced by other compensation at any time and to insist that such a benefit be disclosed would be similar to insisting that the employer also disclose benefits such as parking and gym memberships, which the regulations do not require.

BALCA found that the CO correctly classified COLA as a wage adjustment because it is a set amount “per pay period”, even if the exact amount may change, and is paid on the 15th and last day of each month along with the base salary. BALCA further found that this is different from a per diem benefit, which refers to something paid on a daily basis (citing Mirriam-Webster’s definition of “per diem” as “by the day”) or to reimbursements for travel receipts or meals (pointing to the U.S. General Services Administrations’ definition of “per diem” as an allowance for lodging…meals and incidental expenses). BALCA cited the case of Crowley v. U.S., 57 Fed. Cl. 376, 381 (2003) where the court cited a 1990 Conference Report discussing the Federal Law Enforcement Pay Reform Act which stated that a locality adjustment was considered part of base pay. BALCA therefore held that, based on the federal government’s characterization of a locality benefit as part of base pay, COLA must also be considered part of base pay. Since COLA is a wage and not a benefit, BALCA held that the holding in Emma Willard did not apply.

If COLA is a wage adjustment then isn’t the employer required to list it in all its advertisements and on the NOF? BALCA held that since there is no requirement that an employer list a wage in its newspaper advertisements, the employer’s failure to do so is not a violation of the regulations. Also, citing its decision in Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014) which I previously discussed here, BALCA held that the job order and additional recruitment steps could not held deficient pursuant to 656.17(f)(3) because 656.17(f) applies only to newspaper advertisements. If the advertisements were not deficient, then 656.24(b)(2) is not a valid ground for denial because the employer did properly recruit for the position.

But BALCA has left a pretty bloody trail when it comes to lack of disclosures in the NOF. In Matter of KFI, Inc. 2009-PER-00288 (Aug. 25, 2009) BALCA affirmed a PERM denial based on the employer’s failure to list the CO’s address on NOF in violation of 656.10(d)(3)(iii). In Servion Global Solutions, Inc., 009-PER-00282 (Jun. 23, 2009) BALCA held that failure to state the rate of pay constituted grounds for denial. In Matter of Innopath Software, 2009-PER-00153 (Sept. 2, 2009), BALCA held that the absence of the employer name on the NOF, although it was posted in a conspicuous location at the place of employment, was not harmless error. In Matter of G.O.T. Supply, Inc., 2012-PER-00429 (Oct. 6, 2015) BALCA affirmed the CO’s denial where the company president’s name but not employer’s name was listed on the NOF. BALCA said persons providing information to the CO need the employer name as it appears on Form 9089. The NOF is required to contain certain information as specified in 20 CFR § 656.10(d) which provides that the NOF “must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form).” Failure to list the rate of pay wage in the NOF usually constitutes grounds for denial of certification. But this time, the deficiencies of the PERM process and the Form 9089 could not be overcome.

Despite its conclusion that the regulations could reasonably be interpreted to require an employer to state a wage adjustment on a NOF, BALCA declined to affirm the denial because the Employment and Training Administration (ETA) has issued no guidance whatsoever alerting employers that this type of wage adjustment needs to be specifically disclosed in the advertising and on the ETA Form 9089. BALCA also noted that there is “neither an instruction nor a current mechanism by which an employer may enter this information on the Form 9089 and cited Federal Insurance Co., 2008-PER-00037 (Feb. 20, 2009) in which case 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. Because employers have not been provided with notice of its regulatory interpretation concerning the requirement that COLAs be disclosed and a mechanism by which to disclose COLAs, BALCA could not find the NOF defective.

As an aside, it is also interesting to note that the foreign national resided in Florida rather than in Washington, DC, but BALCA did not attach any significance to this fact. It still raises a question about the importance of differentiating between a future job opportunity in a labor certification and a foreign national’s current employment. It was not clear in the representative case whether Washington DC, which was the subject of the COLA, would be the future position. The PERM labor certification was presumably filed using the employer’s headquarters, and indicated that it would involve working at “unanticipated client locations throughout the US.” If the current position provides a COLA, but the future position that is the subject of the labor certification does not, then the fact that the employer submitted a job offer letter with respect to the current position should not undermine the outcome of the labor certification. In responding to an audit notification, employers must clearly specify whether a job offer letter sent to a US worker applicant is applicable to the future PERM position or to the current position in order to attempt to stave off a similar denial.

Also quite interesting is BALCA’s insertion of a footnote acknowledging that the employer, in its prevailing wage request, negatively answered the question about whether the position will be performed at multiple worksites but then indicated on the Form 9089 that work would also be performed at “unanticipated client locations throughout the US.” BALCA acknowledged that the prevailing wage issued by the National Prevailing Wage Center may have been affected had the employer disclosed the roving nature of the position. BALCA provided no explanation as to why this did not constitute grounds for denial. Possibly because the immigration bar continues to beg in vain for clarification on issues related to roving employees.

This decision follows the trend of Infosys Ltd., 2016-PER-00074 (May 12, 2016), also cited in Cognizant, where BALCA held that it was not fundamentally fair to require an employer’s advertisements and Form 9089 to disclose the possibility of relocation in absence of notice or guidance especially since the DOL had previously approved over 500 similar PERM applications by the employer. In Infosys, BALCA recognized that PERM, an attestation-based program places a heavy burden on employers to be careful in preparing their applications but also places a related burden on the CO to ensure that employers are given adequate guidance on what will be demanded of them. These decisions highlight the frustrating deficiencies in the existing PERM regulations and Form 9089. Updates to the PERM program have long been anticipated by both employers and foreign nationals who each expect to benefit from the PERM modernization. DOL officials previously commented that they expect the new regulation to be finalized and implemented before the end of President Obama’s administration in January 2017.

High Skilled Worker Rule – Is There Scope For Porting On A Labor Certification?

By Cyrus D. Mehta & David A. Isaacson

Our firm provided selected comments to the  proposed DHS rule entitled “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High Skilled Nonimmigrant Workers.” These comments are based primarily on three recent blogs:

Including Early Adjustment Filing in Proposed DHS Rule Impacting High-Skilled Workers Would Give Big Boost to Delayed Green Card Applicants

Preserving H-1B Extension For Spouse And Freezing Age Of Child In Rule Impacting High-Skilled Nonimmigrant Workers

The Opportunity to Be Heard: Why New DHS Proposed Regulations Regarding I-140 Petitions Should Incorporate and Expand Upon the Rule of Mantena v. Johnson.

Our comments focused on areas that others may not have commented on, and may require the DHS and even the DOL to propose supplemental rules. However, if our comments are considered, they will greatly improve the proposed rule.

The centerpiece of the rule is to grant work authorization to beneficiaries of approved I-140 petitions who are caught in the crushing employment-based backlogs. The requirement of demonstrating compelling circumstances has disappointed beneficiaries, along with further restrictions relating to the renewal of the work authorization. We do hope that the DHS removes these restrictions so that deserving beneficiaries are able to easily obtain work authorization.

It would also be highly desirable for beneficiaries of such approved I-140 petitions to exercise   job portability, and not be required to re-start the labor certification process through a new employer, even though the proposed rule allows for the retention of the old priority date under certain circumstances. Recognizing that INA 204(j) requires a pending I-485 adjustment application for 180 days, and thus the DHS may not be receptive to arguments that may justify portability, we proposed that DHS also consider promulgating a rule that would recognize the ability of applicants to file early adjustment applications based on a filing date that would be far ahead of the final action date in the State Department Visa Bulletin, even if theoretically one visa is only available in a preference category. The existence of a pending I-485 application would allow for true job mobility pursuant to INA 204(j).  If DHS does not accept our proposal for an early adjustment filing, we have proposed in our comment the following innovation, which we reproduce below:

“Modifying Labor Certification Rules to Provide Greater Flexibility to Beneficiaries of Approved Labor Certifications

Finally, we take this opportunity to suggest that USCIS propose to another Executive Branch department, specifically, the Department of Labor (“DOL”), some regulatory changes which would mesh well with those that USCIS has proposed and assist in accomplishing the goals of the President’s initiative.

First, we propose that the DOL should formalize a policy, previously suggested in some case law of the Board of Alien Labor Certification Appeals (“BALCA”), whereby an employer who wishes to offer an alien prospective employee a position which in substance has already been the subject of an approved labor certification, even for another employer, does not need to go through the entire labor certification process all over again.

In Matter of Law Offices of Jean-Pierre Karnos, 2003-INA-18, 2004 WL 1278081 (Bd. Alien Lab. Cert. App. 2004) [hereafter referred to as Matter of Karnos], BALCA held that if “there is a bona fide job opportunity which remains the same, despite the change in employers,” then “[t]he absence of a contractual agreement between [the employers] does not negate the fact that a bona fide job opportunity exists” and thus “the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification.” Matter of Karnos, 2004 WL 1278081 at *2-*3. This is, we would submit, consistent with the text and purpose of INA § 212(a)(5)(A), which focuses on the effect on U.S. workers of the alien filling a particular position, rather than the identity of the employer who wishes to hire the alien to fill that position.

In Matter of Karnos, the lawyer who had operated the law office that was the original employer, Jean-Pierre Karnos, had died before a final decision was made on the application for labor certification. Matter of Karnos, 2004 WL 1278081 at *1. James G. Roche, Esq., continued to run a similar law firm under the name of the Law Offices of James Roche, but could not demonstrate that he had any formal contractual relationship with Mr. Karnos so as to assume ownership of Mr. Karnos’s firm. Id. at *1-2. The initial Certifying Officer within the Department of Labor denied labor certification based on the difference in employers, as BALCA explained:

[T]he CO stated that Mr. Roche was “unable to provide that he and Jean-Pierre Karnos had a written contractual or inheritance agreement.” Therefore, the CO found that Mr. Roche was a separate employer and should not be entitled to the application signed by another party. The CO denied certification on the ground that two “distinctly different employers” were involved and there was no agreement to “attest to the legality of this condition.”

Matter of Karnos, 2004 WL 1278081 at *2.

In his request for review by BALCA, Mr. Roche clarified that while he could not establish a formal relationship with the late Mr. Karnos, “he was offering the same position of accountant, under the same terms and conditions, including the same wage, set forth in the original application.” Id. BALCA agreed that this was sufficient:

In general, a new employer must file a new application unless the same job opportunity and the same area of intended employment are preserved. International Contractors, Inc. [and Technical Programming Services, Inc., 1989-INA-278 (Bd. Alien Lab. Cert. App. 1990)]; Germania Club, Inc., 1994-INA-391 (May 25, 1995). When the employer has clearly demonstrated that the job opportunity, including the wage paid, remains the same such that there is still a bona fide job opportunity, a new application is not required.

In this case, there is a bona fide job opportunity and an adequate test of the labor market has been performed. The new Employer, Mr. Roche, has indicated that the duties of the job remain the same and that the salary is the same. The same job opportunity has been preserved. The absence of a contractual agreement between Mr. Karnos and Mr. Roche does not negate the fact that a bona fide job opportunity exists with Mr. Roche as the employer. The new Employer has clearly demonstrated that there is a bona fide job opportunity which remains the same, despite the change in employers.

Therefore, in light of the particular factual circumstances presented by this case, we hold that the change in employers, when an adequate test of the labor market has been performed and when the position remains the same, does not offend the policies of labor certification. The former Employer attempted to recruit a U.S. worker for the position and the new Employer has certified that the position remains the same as that originally petitioned for, in the same area of employment. In such circumstances, labor certification should not be denied solely on the change in employers. Thus, the CO improperly denied certification.

Matter of Karnos, 2004 WL 1278081 at *2-*3.

DOL should amend the governing regulations to make explicit, and expand upon, the holding of Matter of Karnos. Where a new employer wishes to sponsor an employee for a position that remains the same, and is in the same area of employment, a new application for labor certification should not be required.

We also propose that DOL should add to Schedule A, at 20 CFR 656.5, a new “Group III” comprising persons who will be employed in a same or similar occupation to one for which they already have an approved labor certification from a different employer. Under such circumstances, it is reasonable for the Department of Labor to conclude on a categorical basis that there are not sufficient U.S. workers who are able, willing, qualified and available, and that the wages of United States workers similarly employed will not be adversely affected, because a similar determination has already been made in the process of granting the previously approved labor certification.  New employers should under such circumstances therefore be able to process their labor certification through USCIS pursuant to 20 CFR 656.15.  At the very least, even if DOL is not willing to have Schedule III cover such same or similar occupations on a nationwide basis, it should cover instances in which the alien has an approved labor certification for a same or similar occupation, and the area of intended employment for the position covered by the Schedule III filing is within normal commuting distance of the area of intended employment for the position covered by the previously approved labor certification.”

 

BALCA Reverses Labor Certification Denials By Upholding Real World Job Advertisements

Late last year, just in time to ruin the holidays for those affected, the Department of Labor (DOL) started a round of PERM denials setting forth another new and previously unheard of reason for denial. Despite having certified these types of PERMs for years (lulling practitioners into another false sense of security), the DOL started denying PERM applications where the employers, in their PERM recruitment, used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage in lieu of stating the offered salary.

To provide some 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. The PERM regulations do not require the employer to state the offered salary in any of its recruitment. In its list of frequently asked PERM questions (FAQs) on the Office of Foreign Labor Certification’s website, question number 5 under the heading of “Advertisement Content” is asked and answered as follows:

Does the offered wage need to be included in the advertisements?

No, the offered wage does not need to be included in the advertisement, but if a wage rate is included, it can not be lower than the prevailing wage rate.

The Preamble to PERM Regulations, 69 Fed. Reg. at 77347 also discusses the elimination of the requirement that the wage offer must be included in advertisement.

In filing a PERM application, the employer, under 20 C.F.R. §656.10 (c), must certify to the conditions of employment listed on the Application for Permanent Employment Certification (1) “[t]he offered wage equals or exceeds the prevailing wage determined pursuant to §656.40 and §656.41” and (8) ‘[t]he job opportunity has been and is clearly open to any U.S. worker.” And 20 C.F.R. §656.24(b)(2) requires the Certifying Officer (CO) to make a determination as to whether there “is in the United States a worker who is able, willing, qualified and available for and at the place of the job opportunity.” Using these regulations as authority for some of its denials, the DOL, after acknowledging the fact that the employer is not required to list a wage in its advertisements, goes on to state that the employer’s indication of “Competitive,” “Depends on Experience (DOE),” “Negotiable,” “Other,” etc. is in fact an expression of a salary and that any discussion concerning wages must sufficiently inform applicants of the job opportunity outlined in the PERM application. The DOL claims that terms like “Depends on Experience” and “Negotiable” could be vague and could place a potential burden on the US worker to reasonably determine the wage rate for the position or could indicate that an applicant’s experience might potentially cause the employer to offer a salary which is lower than the salary offered to the foreign worker. Incredulously, according to the DOL, a term like a “Will Discuss With Applicant” could prevent a potentially qualified US applicant from making an informed decision on whether he/she would be interested in the actual job opportunity, and could deter a number of such applicants from applying. The denials claim that the employers, by listing terms that potentially deterred US workers from applying, did not adequately test the labor market.

Under the PERM regulations at 20 CFR §656.17(e)(1)(i)(A) and §656.17(e)(2)(i), the employer’s job order for both professional and nonprofessional occupations must be placed with the State Workforce Agency (AWA) serving the area of intended employment for a period of 30 days. But one of the problems many employers face is with SWAs that require the employer to list an offered wage and to make a selection from a drop down menu under “Pay Comments” choosing from comments which include “DOE,” “Will Discuss with Applicant,” “Commission Only,” “Not Applicable,” etc. The DOL has been issuing denials in cases where, for example, the employer listed the offered salary as $0 or $1 in an effort to get past this requirement and then indicated “Will Discuss With Applicant” under the pay comments. As ludicrous as it is to suggest that any US worker would be deterred from applying for the offered position simply because the offered wage was listed as $0 – which obviously could never be the actual case – this is exactly what the DOL suggests in its denials.

The American Immigration Lawyers Association (AILA) did raise this issue with the DOL in one of its stakeholders meetings last year informing the DOL that many of its state job order systems, and many job search websites and other recruitment sources require the use of, or they automatically insert, the terms that are now the cause of the new denials. The DOL only agreed to review the issue and may possibly issue an FAQ in the future. But they declined to suspend further denials or reopen past denials.

Many motions to reconsider have been filed and remain pending. The Board of Alien Labor Certification Appeals (BALCA) has just issued a couple of decisions that will hopefully help shed light on how those pending motions should be decided. In Bahwan Cybertek, Inc. 2012-PER-01147 (Feb. 18, 2016) the employer filed a PERM application indicating that the offered wage was $99,500. The PERM was audited. The employer submitted copies of its SWA job order which showed that the employer had listed the minimum pay and the maximum pay as $1 per year. Under “Pay Details” the employer had indicated “Competitive Salary. Will be discussed with the candidate.” The CO denied certification finding that the job order listed a wage rate lower than the prevailing wage in violation of 20 C.F.R. §§656.10(c)(8) and 656.17(f)(7). In a request for reconsideration the employer stated that it normally does not list wages in its recruitment and the PERM rules do not require it but that the Massachusetts SWA’s online job order system asked for minimum and maximum pay for the advertised position and so the employer entered $1 so that the system would accept the posting but added the pay comments as clarification making it clear that the salary was not $1. The CO still found that the statements “competitive salary” and “will be discussed with the candidate” were “not demonstrably specific enough to overcome the potential chilling affect [sic] arising from advertising $1 as an annual salary.” The employer appealed to BALCA.

BALCA simply pointed out that the regulation at 20 C.F.R. § 656.17(f) provides that “[a]dvertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must … [n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien” and that, by its own terms, this regulation only applies to advertisements in newspapers or professional journals, and does not regulate the content of SWA job orders.

But with regard to whether or not the job opportunity had been clearly open to any US worker as the employer attested to under 20 C.F.R. §656.10(c)(8), one of the grounds for denial being used in the slew of recent denials discussed above, BALCA confirmed that stating a wage rate below the actual wage offer for the job definitely calls into question whether the job opportunity is indeed open to US workers. However, BALCA found that in the instant case, the employer’s indication of a wage rate of $1 was obviously a placeholder based on a generic data field in the SWA job order and was clearly not intended to reflect the actual wage rate. BALCA found that that “no reasonable job seeker would have been discouraged from applying for the job, especially since it was clarified that the employer is offering a competitive salary and that the salary was subject to discussion.

Similarly, as in the recent denials, where an employer has indicated a salary of $0 and had indicated that the salary will be discussed with the applicant, no reasonable job seeker would have been deterred by that.

In another case, Global TPA LLC, 2012-PER-00847 (Feb. 18, 2016), the offered Project Manager position required 4 years of specific experience which the employer detailed on the ETA Form 9089. Upon audit, the CO discovered that the employer had advertised on a website, as one of the three additional forms of recruitment required for professional positions under 20 C.F.R. § 656.17(e)(1)(ii), indicating that the Project Manager position requires 4-5 years of experience. The CO listed this as one of its three reasons for denial. The employer filed a motion to reconsider but the CO upheld its denial and the case went up to BALCA. BALCA referenced its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously discussed here. BALCA pointed out that under Symantec the additional professional recruitment only requires documentation of recruitment for the occupation involved in the application and not recruitment for the particular job opportunity at issue. Therefore, the fact that the employer’s website posting stated 4-5 years of experience as opposed to 4 years of experience as listed on the PERM application did not violate the regulations.  In a footnote, BALCA pointed out that the CO in this case had only cited 20 C.F.R. §656.17(f)(6) as a ground for denial in regard to the discrepancy between the website posting and the ETA Form 9089 in regard to the experience required. BALCA pointed out that its decision is not an opinion on whether the website posting may have been in conflict with 20 C.F.R. §656.10(c)(8) which requires that the employer certify that the job opportunity has been and is clearly open to any U.S. worker.

In any event, even if BALCA declined, in that case, to state that the job opportunity was nevertheless clearly open to US workers, it doesn’t mean that the argument can’t still be made. Under Symantec, the additional forms of recruitment can represent real world alternatives and can advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. Therefore, when it comes to one of these forms of recruitment, an employer’s use of terms like “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” etc. does not take away from the employer’s advertisement of the occupation and is therefore not in violation of any PERM regulation. BALCA specifically stated in Bahwan Cybertek that no reasonable job seeker would have been discouraged from applying due to the use of such terms. And to state what is probably obvious, someone that would read such terms and be left so confused as to be deterred from applying is quite likely not qualified.

After its slew of denials starting late last year and the stream of motions to reconsider that must have resulted, the DOL’s ultimate stance on this issue remains to be seen. Anecdotal and unscientific evidence seems to indicate that they have stopped or slowed down the issuing of these types of denials.

Nevertheless, going forward, it would be wise to stay away from usage of any of the “problem terms” indicated above to the extent possible.

A Trap For The Unwary: Equivalent Degrees And Alternate Requirements In Labor Certification Applications

When a foreign national has a three year degree instead of a four year degree, or has no degree, and is able to establish an equivalent degree through a combination of education and work experience, or only through work experience, it is important that the PERM labor certification application be carefully drafted. While an equivalent degree might pass muster for an H-1B visa, it will not always for a labor certification and the subsequent I-140 immigrant visa petition.

20 CFR §656.17(h) requires that an alternative requirement must be substantially equivalent to the primary requirement of the job opportunity in a labor certification application. If the foreign national does not meet the primary job requirement, and while already employed by the sponsoring employer, only meets the alternative requirement, the labor certification will be denied unless the application states that any suitable combination of education, training or experience is acceptable (emphasis added). 20 CFR §656.17(h)(4)(ii) essentially adopts the holding of BALCA in Francis Kellogg, 1994-INA-00465, although in that case the primary and alternative requirements, namely, experience as a cook or salad maker, were not substantially equivalent, thereby necessitating that the employer accept any suitable combination of education, training or experience. In contrast to Kellogg, 20 CFR §656.17(h) requires consideration of this language even if there is substantial equivalence between the primary and alternative requirement.

Fortunately, if this language does not appear on the form, it is no longer fatal and practitioners can challenge a denial if the sole reason for the denial was the failure to insert this “magic language” on the application. In Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009) the fact that the Kellogg language did not appear on the form could not be a ground for denial as there is no space on the ETA-9089 form for such language; and the Kellogg language also does not need to appear in recruitment materials. BALCA in Federal Insurance held that a denial would offend fundamental fairness and due process under HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006). HealthAmerica is a seminal BALCA decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

Notwithstanding the fact that the Kellogg magic language is not required, DOL’s rigid insistence that alternate requirements be substantially similar becomes especially problematic when a position requires the minimum of a bachelor’s degree but the foreign national qualifies based on equivalent work experience. It is important to draft PERM labor certification applications being aware of this pitfall, as well as the advertisements, so as to avoid a denial. Globalnet Management, 2009-PER-00110 (BALCA Aug. 6, 2009) is illustrative of this problem. In Globalnet Management,, BALCA held that a bachelor’s degree plus two years of experience was not substantially equivalent to 14 years of experience. BALCA did not accept the argument that the alternative requirement of 14 years of experience comported with the well-established formula to determine equivalency under the H-1B visa, three years of experience is equal to one year of education under 8 CFR §214.2(h)(4)(iii)(D)(5), and held that the primary and alternative requirements were not substantially equivalent. BALCA relied on Field Memorandum No. 48-94 that set forth the years under the Specific Vocational Preparation (SVP) system for different educational attainments. Therefore, the appropriate alternative for a position requiring a B.S. degree plus two years of experience would have been four years of experience rather than 14 years of experience. While BALCA noted that 8 CFR §214.2(h)(4)(iii)(D)(5) may be persuasive in the absence of other guidance, citing Syscorp International, 1989-INA-00212, it nevertheless relied on Field Memo No. 48-94 in affirming the denial of the labor certification.

One reason why practitioners still include an alternative requirement relating to an equivalent degree is to ensure that the requirement is consistent with the H-1B visa petition. It is not unusual to qualify a foreign national for an H-1B visa who may have the equivalent of a three year degree, and then makes up the fourth year through the equivalent of three years of experience. The following language, which previously passed muster would now put into jeopardy ETA-9089 applications that define an equivalent degree, as follows: “Employer will accept a three year bachelor’s degree and three years of experience as being equivalent to one year of college.” Under the reasoning employed in Globalnet, this assumes that the alternative requirement would involve 12 years of SVP lapsed time while a bachelor’s degree would only require two years of SVP lapsed time. The employer faces a Hobson’s choice. If the employer does not include what it means by an equivalent degree on the ETA-9089, the subsequent I-140 petition will fail. If an employer requires a bachelor’s degree, and if the foreign national does not have the equivalent of a four year degree, and the ETA-9089 does not include a definition with respect to what it means by an equivalent degree, USCIS will assume that the employer required a four year degree and the foreign national would not be able to qualify for the position by virtue of not possessing such a degree.

On the other hand, in light of Globalnet it no longer remains viable to insist on consistency between the H-1B and the labor certification. Hence, if the primary requirement is a bachelor’s degree and two years of experience, and the foreign national does not have a degree whatsoever, the substantially equivalent alternative that would be acceptable to DOL would be four years of experience, as opposed to 14 years of experience. There may be some concern that requiring this formula on the labor certification, which may pass muster for DOL, may still be problematic when the alien has filed an I-140 petition and is also extending the H-1B visa using the “3 for 1” equivalency formula to establish the equivalent degree to qualify for the H-1B occupation. There is some anecdotal evidence of the USCIS questioning the extension of the H-1B visa when the I-140 petition involving the same position did not require a degree.  However, if this issue comes up during an H-1B adjudication, it should be argued that the discrepancy lies in the USCIS regulations and USCIS interpretations relating to H-1B and I-140 petitions, not in the beneficiary’s job or the beneficiary’s qualifications. USCIS ought not to deny an H-1B solely because a beneficiary who has been classified for an H-1B visa through an equivalent degree, either based on a combination of education and experience, or purely through a requirement of 12 plus years of experience, is classified on an I-140 under the EB-3 skilled worker preference requiring something less than a bachelor’s degree.

Finding ways to escape the Globalnet trap (and to achieve consistency with the H-1B) have not been successful. In Microsoft Corporation, 2011-PER-02563 (October 16, 2012), the employer indicated in items H.4 through H.7 in the ETA 9089 that its requirements for the position was a Bachelor’s degree or foreign educational equivalent in Comp. Sci., Eng., Math, Physics, Business or related field and six months of experience in the job offered or in a computer-related occupation or student school project experience. The employer indicated in item H.8 that there was an acceptable alternate combination of education and experience, and specified that it would accept 3 years of work experience for every year missing from a four year college degree. The CO denied on grounds that the alternative requirement was not substantially similar to the primary requirement. When the employer appealed to BALCA, one of its arguments was that 20 CFR §656.17(h)(4)(i) did not apply as it was accepting an alternate combination of education and experience in H.8-C, rather than an alternate experience requirement. This argument, unfortunately, was shot down, since the employer created an alternate requirement by indicating in H.10 that it would require three years of work experience for every year of missing college education. The following extract from the BALCA decision in Microsoft Corporation is worth noting:

The Employer completed item H.8 indicating it would accept an alternate combination of education and experience, but that there was no alternate experience requirement. The Employer, however, completed box H.14 indicating that it will accept three years of work experience for every year of missing education from a four year college degree. Although not listed in item H.8C, box H.14 indicates that the position has, in effect, an alternate experience requirement which varies from zero to twelve depending on the level of education attained by the applicant. Therefore, the CO correctly applied § 656.17(h)(4)(i) in determining whether the alternate experience requirement is substantially equivalent to the primary requirement.

The reason why labor certifications of this sort stumble is because there is an alternative requirement, thus triggering 20 CFR §656.17(h)(4)(i). The employer can arguably require the equivalent of a bachelor’s degree as a sole requirement, rather than insist on a bachelor’s degree or the equivalent of such a degree, by checking No to H.6 and Yes to H.10 in ETA 9089, and explaining the equivalency formula in H.14. See Matter of DNP America LLC, 2012-PER-00335 (Oct. 6 2015) (employer properly answered No to H.6 because it did not require experience in the offered position, and was instead requiring experience in a similar position, which it appropriately indicated in H.10).   This strategy too is likely to fail as the DOL may argue that an alternate requirement was created in H.10, as in Microsoft, although BALCA has yet to rule on such a fact pattern where the labor certification expresses one requirement, rather than a primary and alternate requirement.

While achieving consistency between the H-1B and the educational requirements on the ETA 9089 may be impossible based degree equivalencies through work experience, it behooves the employer to at least frame the alternate requirement appropriately as being substantially similar to the primary requirement so as to avoid a denial of the labor certification. For foreign nationals who have no degree and have qualified for their H-1B visa status through 12 years of work experience, including the formulaic “3 for 1” year rule as a way to express the equivalency on the labor certification will most certainly be fatal. Instead, this author has experienced success when the employer required a bachelor’s degree in the specialized field as a primary requirement, and as an alternate, required two years of experience in the specialized field in lieu of a bachelor’s degree. This is consistent with DOL’s interpretation under Kellogg and 20 CFR §656.17(h)(4)(i) that the primary requirement of a bachelor’s degree (requiring 2 years of SVP time) is substantially equivalent to  the alternate requirement (which is two years of experience). If the position requires two years of experience in addition to a bachelor’s degree, then the alternate requirement could be 4 years of experience in lieu of a bachelor’s degree.  Similarly, when a foreign national has a three year degree, the best practice is to require either a 3 or 4 year bachelor’s degree plus the relevant experience.

Navigating immigration law is already challenging, and it becomes increasingly more so when one is dealing with the DOL and the USCIS, who are committed to different standards relating to equivalency. What is worse is that the goal posts are constantly moved, and what may have been acceptable previously is unbeknownst to anyone suddenly not. Until both the agencies settle their differences, or legislation forces them to do so, the immigration practitioner will need to be constantly threading the needle when representing foreign clients with equivalent degrees in order to avoid a labor certification denial and successfully obtain permanent residency.

[This is a shorter version of a forthcoming article in ILW’s PERM Book III (High Tech/IT Edition, Ed. Joel Stewart). The blog is for informational purposes only and should not be viewed as a substitute for legal advice]

Don’t You Dare Yank My Precious I-140 Petition Without Telling Me!

The approved immigrant visa petition, Form I-140, is truly precious, especially when foreign nationals caught in the employment-based second and third preference backlogs have to wait for several years before they can get their green cards. The beneficiary of an I-140 petition can also “port” to a new employer after an I-485 adjustment of status application has been pending for 180 days. Once the beneficiary has ported and is no longer in contact with the former employer, the USCIS may discover that it improperly approved the I-140 petition and revoke it. Only the prior employer may get notification, which may no longer care to contest the grounds for revoking the I-140 or this employer may no longer even be in existence. The hapless foreign national who is enjoying job mobility under INA 204(j) does not know any better, but this individual may no longer be able to obtain permanent residency.

Should this foreign national beneficiary at least be notified about the I-140 being revoked and allowed to contest it? In 2009, the Ninth Circuit Court of Appeals in Herrera v. USCIS  answered in the negative by holding that the government’s authority to revoke an I-140 petition under INA 205 survived portability under INA 204(j). Since Herrera,  progress has been made in favor of the foreign national’s interest in the I-140 petition although it may have been filed by the employer. In 2014, the Eleventh Circuit Court of Appeals in  Kurupati v. USCIS held that a foreign national had standing notwithstanding the USCIS rule in 8 CFR 103.3(a)(1)(iii)(B) that precluded the beneficiary from challenging the revocation of an I-140.  The Kurupati court observed that the foreign national was clearly harmed as the revocation of the I-140 petition resulted in the denial of the I-485 adjustment application. The Court further observed that the notion of prudential standing, where a court may disregard standing based on prudence,  has been discredited by the Supreme Court in Lexmark International Inc. v. Static Control Components, which held that the correct question to ask is whether the plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue.” The Eleventh Circuit in Kurupati closely followed an earlier 2013 decision of the Sixth Circuit in Patel v. USCIS by holding that the beneficiary of an I-140 petition had standing because he or she suffered injury that was traceable to the USICS, namely, the loss of an opportunity to become a permanent resident. INA 203(b) makes the visa available directly to the immigrant, and not the employer, which suggests that Congress gave the beneficiary a stake in the outcome of the I-140. Moreover, after an I-140 is approved, the beneficiary can apply for permanent residency rather than a temporary status based on the employer’s need for the beneficiary’s services. Additionally, Congress also enacted INA 204(j) that allows the beneficiary to change jobs without starting the whole I-140 process all over again. Thus, under the question raised in Lexmark, Congress has authorized the beneficiary to challenge the denial of an I-140 petition, and thus this individual has standing without taking into consideration whether a court has discretion to allow it. This reasoning is further bolstered by INA 204(j), where the employer derives no further benefit from the employee’s benefit to port to a new employer.

Despite Kurupati and Patel, which gave standing to the beneficiary of an I-140 petition to challenge the revocation or denial, a federal district court in Musunuru v. Lynch, 81 F. Supp.3d 721 (2015) held to the contrary, that the beneficiary of an I-140 petition could not challenge the revocation of a prior I-140 as the applicable regulations only authorize the petitioning employer to be provided with notification and to challenge the revocation. The Musunuru Court also opined that unlike a non-citizen who is in removal proceedings and who would suffer a serious loss, and thus a right to be heard, an I-140 revocation does not cause the same loss. Obviously, the court’s reasoning is wrong as the denial of an I-140 petition results in the denial of the I-485 adjustment application, which in turn can place the beneficiary in removal proceedings. Fortunately, Law360 reported that this case is on appeal in the Seventh Circuit, and at oral argument, “Circuit Judge Rovner seemed baffled by the whole case, however, saying it doesn’t appear that Musunuru did anything wrong but was being punished for someone else’s mistakes.”

The prospect of the DHS promulgating a rule that would allow beneficiaries of an approved I-140 to apply for work authorization although they are not yet able to file I-1-485 applications should not diminish the beneficiary’s standing in case the I-140 is revoked. First, USCIS has authority under INA 274(a)(h)(3) to issue work authorization to any class of non-citizens.  While an I-140 petition anchored by an I-485 would strengthen the standing claim, there are old decisions that provided standing to the beneficiary of a labor certification, in the absence of a subsequent I-140 petition or an I-485 adjustment of status application. In Ramirez v. Reich,  the DC Circuit Court of Appeals recognized the non-citizen’s standing to sue, but then denied the appeal since the employer’s participation in the appeal of a labor certification denial was essential. While the holding in Ramirezwas contradictory, as it recognized the standing of the non-citizen but turned down the appeal due to the lack of participation of the employer,  the employer’s essentiality is obviated if the non-citizen is allowed to detach from the sponsoring employer under a rule granting work authorization  that replicates 204(j) portability, notwithstanding the lack of an I-485 application. Still, an even older 1984 case, Gladysz v. Donovan provides further  basis for non-citizen standing even if there is no pending I-485 application. In Gladysz, the non-citizen sought judicial review after the employer’s labor certification had been denied, rather than challenged his ability to seek administrative review, and the court agreed that the plaintiff had standing as he was within the zone of interests protected under the Administrative Procedures Act.

As courts are recognizing the non-citizen’s interest in an I-140, employers may want to think twice before withdrawing an already approved I-140 petition even after the employee has left. Unlike an H-1B petition, there is no sanction for the employer who does not withdraw the I-140 petition. The I-140 petition allows the non-citizen to seek an H-1B extension through another employer beyond the maximum sixth year under the American Competitiveness in the 21st Century Act. It also allows the priority date on that I-140 petition to be transferred to a subsequently filed petition, and provides a measure of protection for one who wishes to port under INA 204(j). Courts have also recognized that the I-140 petition enables the beneficiary to seek benefits independent of the employer who sponsored him or her, and thus providing greater rights to the foreign national beneficiary in the I-140 is a step in the right direction, especially when backlogs in the employment preferences have resulted in longer and longer waits for the coveted green card.

BALCA, What Have You Been Up to so Far in 2015?

I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are a couple of recent BALCA tidbits.

BALCA applies Matter of Symantec

In Computer Sciences Corporation, 2012-PER-00642 (Jul 9, 2015) the Certifying Officer (CO) denied the PERM on the grounds that the Employer’s inclusion of the language, “Willingness to travel; may require work from home office” in its recruitment advertisements posted on its website and on a job search website, constituted terms and conditions of employment that exceeded those listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6).

As background, employers recruiting under PERM for a professional position must complete the mandatory recruitment steps required by 656.17(e)(1)(i) as well as three additional recruitment steps provided in 656.17(e)(1)(ii).

The Employer’s advertisements posted on its website and on the job search website were in satisfaction of two of the three required additional recruitment steps. In reversing the CO’s decision, BALCA simply cited its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously blogged about in greater detail here, and held that 656.17(f) does not apply to additional forms of recruitment. The Employer dodged a bullet here.

BALCA finds that Employer’s letter was within the record and can be considered on appeal

Once a PERM is denied, if the Employer files a motion for reconsideration, under 656.24(g)(2), this motion can only include (i) documentation that the Department actually received from the employer in response to a request from the CO to the employer; or (ii) documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the PERM was filed and was maintained by the employer to support the PERM application in compliance with 656.10(f).

In New York City Department of Education, 2012-PER-02753 (June 19, 2015), the CO first denied the PERM application on the grounds that the Employer failed to provide a recruitment report that accurately accounted for the number of applicants for the job opportunity. The Employer filed a motion for reconsideration arguing that it properly accounted for all applicants. The CO, ignoring this request for reconsideration, issued a second denial letter, finding that the Employer did not provide job-related reasons for its rejection of US workers. Based on the documentation the Employer had submitted with the audit response, it appeared that US workers were rejected because they expressed disinterest in the position but the CO also reviewed the Employer’s interview notes that stated the candidates were available “immediately” or “soon.” The Employer filed a second motion for reconsideration explaining, not only that the CO cannot ignore the first motion and issue a second denial, but, moreover, that it had indeed lawfully rejected the US workers. Along with its motion the Employer provided a letter from its Executive Director explaining the company’s interview process and the fact that the Employer made the determination to reject the applicants after they expressed their disinterest at a second interview.

Since the Employer failed to properly explain its interview process and reasons for rejection in its audit response, BALCA found that the CO was justified in his denial of the case. However, in forwarding the case to BALCA, the CO acknowledged the letter that the Employer submitted along with its second motion explaining its hiring process. The CO did not refuse to accept it on the grounds that it was barred under 20 CFR 656.24(g)(2). Under that regulation, since the Employer’s had previously had a chance to submit this letter with its audit response but did not and since this letter was not documentation that existed at the time the PERM was filed, the CO would have been justified in refusing to accept it. But since the CO did not, the letter became part of the record that BALCA had to consider upon appeal. With the letter fully explaining the Employer’s interview process, BALCA had no choice but to find that the US workers had been lawfully rejected.

The take away from this case is how important it is to fully respond to an audit request. Had the CO rejected the Employer’s letter, the denial would have been upheld.  As BALCA pointed out, the CO’s audit letter very clearly requested a report that lists the date(s) the employer contacted the US worker; the dates the employer interviewed the US worker; the specific reasons the US worker was rejected; and information that documents the employer contacted the applicant(s). In its audit response, the Employer failed to provide this detailed information.

BALCA held that an original signature is not required on the recruitment report but the report must be signed

In another case involving New York City Department of Education, BALCA upheld the denial of three PERMs finding that the typed name of the Executive Deputy Director at the bottom of the recruitment report did not constitute a valid signature. The CO had denied the Employer’s PERM after audit for failure to submit a signed report as required under 656.17(g)(1). The Employer, in its request for reconsideration, explained that it had a physically signed recruitment report in its audit file and this report, due to administrative error, simply was not included in the audit response. The Employer alternatively argued that the regulations do not require a handwritten signature and the typed name of the Employer’s Deputy Executive Director was satisfactory.  The CO transferred the file to BALCA where each of the Employer’s arguments were shut down.

BALCA held that the fact that the Employer had a physically signed copy of the recruitment report speaks to the fact that the typed name on the bottom of the report submitted with the audit response was not intended to be a signature. The Employer argued that “original signatures” are not required. BALCA agreed that 656.17(g)(1) does not require an original signature but again stated that the typed name on the bottom of the report was not intended to be a signature – original or otherwise. The Employer argued that fundamental fairness ought to prevail as it had only failed to submit the physically signed report due to administrative error. BALCA held that the Employer had been given an opportunity to submit the signed report with the audit response and failed to do so. Finally, the Employer argued that each statement in the recruitment report was verified by other documentation submitted with the audit response and therefore the omission of the physically signed report was immaterial. BALCA, using one of its favorite quotes, held that “PERM is…an exacting process.” Essentially, because a signature is a regulatory requirement under 656.17(g)(1), then there must be a signature, no matter how unfair it may seem in light of all the facts of the case.

It’s really a shame whenever something so simple and unintended leads to a PERM denial or in this case, three PERM denials. But it highlights the importance of checking and rechecking an audit response before it is submitted and the importance of having, if possible, more than one pair of eyes review the response prior to submitting it. PERM can be a very unforgiving process.

BALCA says US workers can be lawfully rejected for “lack of experience”

In Presto Absorbent Products, Inc., 2012-PER-00775 (May 26, 2015), the CO denied the PERM finding that the Employer failed to provide lawful reasons for rejection. The Employer’s recruitment report stated that the Employer received eight resumes and that the applicants lacked experience. The Employer also stated that “All applicants were reviewed to determine if they would be able and qualified to perform the duties of the position within a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA held that the regulation does not indicate a level of specificity beyond what the Employer provided and that “lack of experience” is a lawful reason for rejecting applicants.

While it is indeed heartening anytime BALCA errs on the side of reason, I don’t think PERM practitioners ought to rely too heavily on this decision and it’s always best to be as specific as possible in providing the reasons for rejection of US workers. For instance, instead of “lacks the technological experience” it would be clearer to state, “lacks experience in the required technologies such as C++, Java & PL/SQL” and instead of “lacks experience” it might be better to say “applicant possesses only 2 years of experience but the position requires 5 years of experience.” Even if it may appear silly to have to spell out the obvious, it might be valuable time and money saved by preventing an erroneous denial.

BALCA comments on newspaper circulation and distance to the area of intended employment

In Pentair Technical Products, 2011-PER-01754 (Aug. 5, 2015), the Employer used the San Antonio Express newspaper (the “Express-News”) for its first Sunday newspaper advertisement to recruit for a professional position in Pharr, Texas. The CO denied the PERM on the grounds that the Express-News is circulated in San Antonio, Texas and not in the area of intended employment – Pharr, Texas.

Under 20 CFR § 656.17(e)(1)(i)(B)(1), one option for an employer’s mandatory print advertisements for a professional position is “[p]lacing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available US workers.”

In a motion for reconsideration, the Employer argued that the Express-News is circulated in Pharr, Texas. The Employer argued that it chose the Express-News as it is the largest newspaper with general circulation in Pharr in order to reach the largest number of US workers. The Employer’s attorney also argued that he had personally contacted the Express-News and a representative at the newspaper had verified that the paper is circulated in Pharr, Texas. The CO nevertheless found that his denial was valid because San Antonio is four hours away from Pharr, well outside commuting distance and so the Employer had failed to advertise in the area of intended employment.

BALCA found that the issue of whether or not San Antonio is outside normal commuting distance from Pharr is relevant only if the Express-News were only available in San Antonio and not in Pharr. However, the record established that the Express-News is a newspaper of general circulation in Pharr. Accordingly, the fact that it is published in San Antonio is of no legal consequence.

BALCA pointed out that when a single area of intended employment is served by multiple newspapers, the CO ought not to be concerned with which paper reaches the most people but rather with whether the newspaper reached the intended audience and is a “newspaper of general circulation in the area of intended employment.” As an example, BALCA stated that if Trenton, NJ is the area of intended employment, whether The New York Post is more “appropriate” than The Trenton Times because it has more readers is irrelevant and there is nothing in the regulations that requires an employer to utilize the newspaper with the highest circulation in the area of intended employment or the newspaper published closest to the area of intended employment.

At first look, the case appears to be very encouraging. As long as the newspaper reaches its intended audience, all is well. Not so fast. This is another one of those cases where BALCA’s decision is expressly limited to the precise facts of the case. BALCA takes time to point out that in this case the CO did not deny the PERM based on a finding that the Employer had failed to utilize the “most appropriate” newspaper. The only issue raised in the denial was whether the Employer placed a newspaper advertisement in the area of intended employment so that is the only issue that BALCA has addressed. As to whether Express-News was the newspaper “most appropriate” to the occupation for which the Employer was recruiting, we will never know.

It can be very difficult for employers to decide where to advertise. This case answers the question of whether it is permissible to advertise in The New York Times for a position in New Jersey. Yes, it is permissible because The New York Times is a newspaper of general circulation in New Jersey. But this case does not provide any guidelines for an employer struggling to determine which newspaper is “most appropriate.” For instance, in recruiting for a professional position in New York City, how does an employer decide between The New York Post vs. The New York Times? It is significantly more expensive to advertise in The New York Times and so an employer may not want to do that unless that newspaper is the only newspaper that would be permissible under the regulations. What statistics would that employer need to examine? Should that employer just assume that The New York Times is the newspaper most read by professionals and therefore The New York Times will always be “most appropriate” in recruiting for any professional position? In a footnote, BALCA mentioned that the Employer utilized The Monitor as the newspaper for the second Sunday advertisement and that this was not challenged by the CO. BALCA pointed out that the regulations refer to “newspaper” in the singular in requiring advertisements to be placed “in the newspaper of general circulation in the area of intended employment.” BALCA commented that the regulations do not appear to contemplate a situation where more than one newspaper is circulated in the area of intended employment and the newspapers are equally appropriate given the employment at issue and the workers likely to apply for the job. BALCA conveniently declined to comment on that issue. So while it is great that employers can choose any newspaper as long as it is one of general circulation in the area of intended employment, employers need to remain concerned about ensuring that the paper chosen is the “most appropriate” paper and it’s probably just best to use the same paper for both of the Sunday ads.

These recent cases highlight the “little” things that can lead to a big denial of a PERM. Just reading these cases creates heightened awareness of potential issues and naturally leads to better and more focused reviews of documentation prepared during the PERM process and documentation submitted to the Department of Labor.

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

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. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.

DOL POLICY ON LAID-OFF U.S. WORKERS FOR PERM LABOR CERTIFICATION APPLICATIONS

The filing of a labor certification application is normally the first step when an employer sponsors a foreign national employee for permanent residence. Under the labor certification process, the employer is required to demonstrate that it unsuccessfully conducted a good faith recruitment of the US labor market at the prevailing wage before it can proceed to sponsor the foreign national employee.

The Department of Labor, under the slim authority given to it in INA 212(a)(5) has promulgated complex rules in 20 Code of Federal Regulations (CFR) Part 656 that govern how an employer must establish a good faith test of the US labor market. These rules, which have created a huge “labor certification bureaucracy”, also reflect a concern for US workers who were laid off within 6 months of filing the labor certification application. Specifically, 20 CFR 656.17(k) provides:

1) If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

(2) For the purposes of paragraph (k)(1) of this section, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

The requirement for an employer to have notified and considered all potentially qualified laid-off workers has always been a touchy issue for employers. It is easier for an employer to broadcast advertisements and undertake other prescribed recruitment steps for prospective US workers than for an employer to contact its own prior workers regarding a job opportunity that is the subject of the labor certification application. The notification requirement of all laid off workers in the specific occupation or related occupation has also been open to varying interpretations. Would it suffice if the laid off worker was told to check job opportunities in the future on the employer’s website or must the worker be actually notified when labor certification is being sought in the same job opportunity?

The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.

The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and invite the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

While the DOL has clarified the notification requirement for laid-off workers, must an employer contact all laid off workers in the specific or related occupation for which labor certification is sought even if the employer knows that the laid-off worker’s qualifications do not objectively meet the requirements of the position? For example, the job opportunity for which labor certification is being sought, let’s say a Software Engineer, requires five years of experience in certain computer programming languages like C++, Java and Python. The employer knows that a former worker, also a Software Engineer, who was laid off 3 months ago only had 1 year of experience in C++, but not Java and Python. Is the employer required to notify this worker under 20 CFR 656.17(k) when the employer knows that the laid off worker is not qualified for the position?

The employer must also check off a box on ETA 9089, Section 1.e.26,  which broadly asks whether the employer had a layoff in the area of intended employment in the occupation of the job opportunity or a related occupation within 6 months of filing the application. The checking off the “yes” box is likely to trigger an audit and further scrutiny. The next box Section 1.e.26A, asks “were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?” If the employer checks off the “no” box or the “NA” box, would that be permissible if the laid off worker is clearly not qualified for the position?   In other words, when an employer knows that a laid-off worker is not potentially qualified, may it only consider the worker’s qualification or does it also need to notify that prior worker? If the labor certification is audited, the DOL will request documentation to establish the number of US workers in the occupation or in a related occupation that were laid off by the employer; a listing of all occupations relevant to the layoffs; an explanation as to why notification or consideration of the employer’s potentially qualified laid-off US workers was not applicable; and proof that any laid off US workers not notified and considered by the employer were not potentially qualified for the job opportunity.

The Board of Alien Labor Certifications in Matter of Federal Home Loan Mortgage Corp, 2011-PER-02902 (BALCA February 10, 2014)  held that an employer was justified in rejecting a laid-off worker who was not qualified for the position. While it is not clear from this decision whether the employer had notified the laid off worker, it is clear from the resume that the laid off worker was not qualified for the position, according to BALCA. The position in the instant case required a very deep knowledge of SAS, including SAS on Unix and SAS for Windows. The laid-off worker did not have experience with these program tools. Although the Certifying Officer in denying the labor certification assumed that the laid off worker would have obtained the same skills and knowledge for the position for which labor certification was sought, having worked with the employer for three years, BALCA found that the CO’s assumption was unfounded and unsupported by the record. Cisco Systems, Inc, 2011-PER-02900 (BALCA April 26, 2013), however, provides more clarity regarding whether an employer needs to notify a laid-off worker who is not qualified for the position. There BALCA held that the employer who had not notified a laid-off worker was justified in its rejection of that worker who clearly lacked the qualifications for the position.

It may thus be defensible for an employer to not notify all laid off workers in the occupation for which labor certification is sought, or a related occupation, unless the laid off worker is potentially qualified for the position. Of course, when in doubt, the employer must contact the laid-off worker per the new DOL FAQ. Unfortunately, in the world of labor certification, the DOL imposes unrealistic requirements and burdens upon employers, and one can never know how the DOL will react when an employer justifies that its reason for not notifying laid-off workers was because they were unqualified for the position. The DOL has publically indicated that BALCA does not speak for it, and it may not consider itself to be bound by Matter of Federal Home Loan Mortgage Corp or Cisco Systems. Therefore, employers are advised to tread very cautiously when workers have been laid off within six months prior to filing a labor certification on behalf of a foreign national employee.

Do We Still Need PERM Labor Certification? An Analysis of the Merits-Based Points System in BSEOIMA

By Gary Endelman and Cyrus D. Mehta

We continue to analyze the provisions of the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, s. 744 (BSEOIMA), which seeks to bring about dramatic changes to the existing immigration system in the United States.  One of the most  transformative changes that BSEOIMA will bring, if enacted, is a merits-based points system. For previous blogs on BSEOIMA, we refer readers to Workable or Unworkable: The H-1B and L-1 Provisions in BSEOIMA, s. 744 and Some Preliminary Observations Regarding The Proposed Border Security, Economic Opportunity And Immigration Modernization Act.

There will be a two track merits-based system under BSEOIMA.  The first track points-based merits system will have 120,000 to 250,000 merit-based visas. The second track non-points merits system applies to long term residents, and this track does not have a cap. By creating a points system, Congress has voted “No Confidence” in the labor certification program as a way to provide US employers with the talent they and the economy needs. This lack of confidence is also evident in other parts of BSEOIMA where STEM graduates with advanced degrees can be directly sponsored for green cards by employers without going through the arduous labor certification process.

Perhaps, it has also dawned on Congress about the futility of the labor market test that is conducted on behalf of a foreign worker for green card sponsorship who is already hired by the employer.  A good faith test of the labor market even if conducted by a well-intentioned employer will likely fail, at least from the Department of Labor’s (DOL) view, if the foreign worker is already in the position. The statutory basis for labor certifications, which in its current form is known as PERM (Program Electronic Review Management), is provided in INA §212(a)(5) of the Immigration and Nationality Act (“INA”). Under INA §212(a)(5), an alien is deemed “inadmissible unless the Secretary of Labor” certifies, inter alia, that “there are not sufficient workers who are able, willing, qualified…and available at the time of application” among the U.S. workforce. Out of this simple mandate in the INA, the DOL has built a complex regulatory structure that has delegated to the employer to conduct a good faith text of the US labor market. While in the real world an employer selects the best workers based both on an objective and subjective set of criteria, the DOL requires employers to demonstrate that only minimally qualified workers are available for the position. The labor certification process neither compels nor incentivizes an employer to hire the best workers, but it also does not result in the creation of US jobs. If a minimally qualified worker applies for the position, all that happens is that the labor certification cannot be filed.

The first track points-based system moves away radically from the labor certification system as it allows a foreign national to apply for permanent residency without a specific employer’s sponsorship. It  will take effect five years after the enactment of BSEOIMA. During  the first four years from enactment,  visas shall be made available to the backlogged EB-3 preferences. From the fifth year onwards,  50 % of visas shall be allocated to applicants who get the highest number of points under Tier 1. The remaining 50% of visas shall be allocated to applicants who get the highest number of points under Tier 2.

Under Tier 1, points will be assigned as follows:

A. Education
  • 15 points for a doctoral degree
  • 10 points for a master’s degree
  • 5 points for a bachelor’s degree from an institution of higher education in the US
B.    Employment Experience
No more than 20 points can be allocated as follows:
  • 3 points for each year an alien has been lawfully employed in a zone 5 occupation
  • 2 points for each year the alien has been lawfully employed in a zone 4 occupation
C. Employment Related To Education
An alien who is in the US and is employed full time or has an offer of full time employment in a field related to the alien’s education
  • In a zone 5 occupation shall be allocated 10 points
  • In a zone 4 occupation shall be allo0cated 8 points

D. Entrepreneurship

An alien who is an entrepreneur in a business that employs at least 2 employees in a zone 4 or zone 5 occupations shall be allocated 10 points

E. High Demand Occupation

An alien who is employed full-time or has an offer of full-time employment in a high demand 1 shall be allocated 10 points

F. Civic Involvement

An alien who has attested that he or she has engaged in  significant amount of community service shall be allocated 2 points

G. English Language

An alien who received a score of 80 or more on the Test of English as a Foreign Language, or an equivalent score on similar test, shall be allocated 10 points

H. Siblings and Married Sons and Daughters of Citizens

An alien who is the sibling of a citizen of the United States or who is more than 31 years of age and is the married son or married daughter of a citizen of the United States shall be allocated 10 points

I. Age

An alien who is:
  • between 18 and 24 years of age shall be allocated 8 points
  • between 25 and 32 years of age shall be allocated 6 points
  • between 33 and 37 years of age shall be allocated 4 points

J. Country of Origin

An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

Under Tier 2, points will be assigned as follows:

A. Employment Experience

An alien shall be allocated 2 points for each year the alien has been lawfully employed in the US, for a total of not more than 20 points

B. Special Employment Criteria

An alien who is employed full-time, or has an offer of full-time employment
  • in a high demand tier 2 occupation shall be allocated 10 points
  • in a zone 1 occupation or zone 2 occupation shall be allocated 10 points

C. Caregiver

An alien who is or has been a primary caregiver shall be allocated 10 points

D. Exceptional Employment Record

An alien who has a record of exceptional employment shall be allocated 10 points

E. Civic Involvement

An alien who has demonstrated significant civil involvement shall be allocated 2 points

F. English Language

An alien who received a TOEFL score or an equivalent score on a similar test:

  • 75 or more shall be allocated 10 points
  • More than 54 and less than 75 shall be allocated 5 points

G. Siblings and Married Sons and Daughters of Citizens

An alien who is the sibling of a citizen of the US or is over the age of 31 and is the married son or married daughter of a citizen of the US shall be allocated 10 points

H. Age

An alien who is:

  • Between 18 and 24 years of age shall be allocated 8 points
  • Between 25 and 32 years of age shall be allocated 6 points
  • Between 33 and 37 years of age shall be allocated 4 points

I.     Country of Origin

An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

There is also a second merit based track system that does not depend upon points beginning October 1, 2014. The second merits non-points system cleverly acts as a safety valve to reduce the existing backlogs in the system, and also ensures that we do not experience the same horrendous backlogs as we see under the existing system. People whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis. Those who have been lawfully present for not less than 10 years will also be eligible for this non-points based side of the merit-based visa system. Registered Provisional Immigrants (RPIs) will be able to adjust status based on 10 years of lawful presence under this second merit non-points track system.

Labor certification will undoubtedly survive even after BSEOIMA as beneficiaries under the EB-2 and EB-3 preferences still need an employer to obtain labor certification. Moreover, not everyone will be able to make it under the merits system, such as ethnic cooks for example, who may not even need to speak English but are still vital for the success of the restaurant.  The merits based points system will compliment labor certification if BSEOIMA is enacted. Congress, and probably DOL itself has realized, as the authors have previously noted in their prior article, that the very notion of a “good faith” recruitment seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in PERM do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve. Justification of labor certification can extend no further than a test of the relevant job market. The DOL has also failed to provide jobs to U.S. workers even though it forces the employer to conduct elaborate tests of the labor market to retain the foreign national employee. Indeed, as presently conceived and administered by the DOL, labor certification is a job killer, hurting the employment prospects of the domestic work force by artificially preventing US employers, most especially emerging companies who are the engine of job creation, from treating the foreign national as an asset to be maximized in way that promotes job growth and strengthens the very economy on which we all depend. Indeed, no intellectually honest examination of the labor certification system can fail to detect the pervasive distrust of the entrepreneurial spirit and the very ethos of capitalism itself that the DOL brings to each phase of the PERM process.

As the PERM labor certification appears to wither in BSEOIMA, giving way to a merits based points system, one can also learn from the Canadian points system where the points based system first started. A points based system may not necessarily be ideal. It could potentially encourage PhDs to win the highest points only to immigrate and not find jobs that are commensurate to their skills. Moreover, gaining the requisite points under specific criteria  are not an end unto themselves, and  that their effectiveness cannot be measured apart from the overall ability of the new immigrant to integrate into the economy and culture of the receiving nation . It  is this that ultimately will determine if the immigrant will be put into a position to succeed for themselves and their adopted home.

A Maclean’s article on the failure of the Canadian points system is revealing. According to a study conducted by the Organization for Economic Co-Operation and Development (OECD), only 60% of Canadian immigrants found jobs in their chosen areas of specialization compared to an OECD average of 71%; in matching up skills with employment, Canada ranked near the bottom, worse than Estonia, Italy, Spain and Greece.

The labor certification system seeks to  match the employer’s demand with the foreign national’s skills. Even here, however, it seems clear that PERM is not the best way for employers to express their interest in potential new hires. An independent assessment of language and credentials after which applicants can be placed in a pool for employers to draw from may be a promising third way between a free-standing points system (Canada) and immigration linked to specific job offers (USA). This “expression of interest” as applied in Australia and New Zealand avoids the frustrations of the Canadian approach and the economic illiteracy of PERM.

The frustrations of the Canadian model suggest strongly that recruitment of even the most skilled knowledge workers cannot be divorced from domestic demand.  Not only has this produced  long waiting lines in Canada but the bias towards highly educate STEM professionals has deprived those industries which are booming, such as the oil fields in Alberta, of the blue collar talent that they so vitally need. According to a New York Times article that was written when the points based system was first proposed in the failed 2007 bill:

Part of the backlog in Canada can be traced to a provision in the Canadian system that allows highly skilled foreigners to apply to immigrate even if they  do not have a job offer. Similarly, the Senate bill would not require merit system applicants to have job offers in the United States , although it would grant additional points to those who do. Without an employment requirement , Canada has been deluged with applications.

According to a Huffington Post article, the chronic underemployment of advanced degree professionals in Canada underscores the need for employers  to play an active role in the immigration selection process. Since 2004, the Provincial Nominee Program (PNP) where provinces sponsor immigrants to designated job vacancies has expanded six fold. In Australia, 81% of immigrants obtained employment in their chosen disciplines within six months. A pure points system not anchored to what employers are looking for will produce lower income and higher unemployment. Once again, according to the Maclean’s article, a comparison with Canada is instructive:

In contrast to the Canadian experience, immigrants to the US have virtually closed the income gap with American-born workers. In 1980, US immigrants earned about 80 per cent of American-born workers, a gap that was roughly the same in Canada. By 2011, US immigrants earned 93% of native-born workers, while foreign-born college graduates now out-earn their American counterparts. During the last recession, the unemployment rate for foreign-born university grads in Canada topped out at 8.4 per cent in 2010( Among those who lived in the country less than 5 years, it was more than 14 per cent.) By comparison, unemployment among foreign-born graduates in the US was 4.4 per cent.

BSEOIMA  keeps intact the traditional labor certification system under the employment-based second and third preferences, but also introduces a merits based points and non-points system. Within the merits-based points systems, plenty of points will be given to those who have jobs, offers of employment, and even US-based employment in the area of the alien’s education,  but it does not require the employer to file a “pointless” labor certification (no pun intended!). Under the non-points merits based visa system, long term residents waiting in the pipeline for a green card can avail of visas, thus creating a safety valve in case of backlogs. BSEOIMA thus provides several pathways for foreign nationals to obtain permanent residence without obsessively focusing on labor certification.  The goal we seek is not to replace PERM with a points system but to find an alternative to both that is ethical, transparent and realistic providing the economy with the human capital it needs to grow but doing so in a manner that allows immigrants to be productive while respecting the legitimate interests of US workers.

We now have a new world.  The merit based system in the bill provides this missing alternative. BSEOIMA is a transitional document and the number of options to obtain green card status without labor certification is bound to grow in future years.  The virtue of BSEOIMA is that it is hybrid system combining a points system with employer selection. This offers the best of both worlds, and we refer readers to a Migration Policy study that thoughtfully provides models for such hybrid systems. As the global competition for top talent in science and technology intensifies, in order for the United States to attract and retain the best and the brightest, PERM will increasingly be relegated to a less important place, although it may still be important for certain occupations who cannot avail of the new pathways to permanent residency. PERM will not disappear but it will never again enjoy the dominance of old.  It is this third way that will define America’s immigration policy in the 21st century.