David Isaacson

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

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By David A. Isaacson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cora-Ann Pestaina

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

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By Cora-Ann Pestania

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

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

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

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

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

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

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

Cora-Ann Pestaina

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

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Cora-Ann V. Pestaina

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

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

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

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

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

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

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

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

David Isaacson

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

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By David A. Isaacson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cora-Ann Pestaina

BALCA ON USING A RANGE OF EXPERIENCE IN RECRUITMENT

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Cora-Ann Pestaina

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

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

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

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

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

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

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

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

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

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

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

David Isaacson

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

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By David A. Isaacson

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

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

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

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

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

Cora-Ann Pestaina

BALCA ON EMPLOYEE REFERRAL PROGRAMS UNDER PERM

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Cora-Ann V. Pestaina

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

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

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

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

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

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

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

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

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

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

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

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

David Isaacson

CONSEQUENCES OF VISA BULLETIN CUTOFF DATE RETROGRESSION UNDER THE CHILD STATUS PROTECTION ACT

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By David A. Isaacson

In recent months, the Visa Bulletin issued by the Department of State has shown a “retrogression” of priority dates in a number of Family-based categories. This means that the cutoff date determining which priority dates are early enough to make a visa number available to particular immigrants so that they can move forward with the process of seeking permanent residence, and which priority dates are not early enough, has moved backward in time rather than forward. Some people who were previously eligible – who appeared to have reached the front of the waiting line – will need to wait until their priority date once again becomes current to get a visa number. This retrogression, which affected the Philippines in the December 2010 Visa Bulletin, http://www.travel.state.gov/visa/bulletin/bulletin_5197.html, and then expanded to the cutoff dates for the rest of the world in the January 2011 Visa Bulletin, http://travel.state.gov/visa/bulletin/bulletin_5212.html, has the potential to create complications for those who seek to make use of the Child Status Protection Act (“CSPA”).

The CSPA protects certain applicants from losing their status as children even though they have turned twenty-one. The provision of the CSPA relevant here is section 203(h) of the Immigration and Nationality Act (“INA”), which provides, in part:

(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
(1) IN GENERAL.– For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using–
(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien’s parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.
(2) PETITIONS DESCRIBED- The petition described in this paragraph is—
(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien’s parent under subsection (a), (b), or (c).

Subsection 203(a)(2)(A) refers to a petition filed by a Lawful Permanent Resident (“LPR”) on behalf of his or her spouse or child, and 203(d) provides for “[a] spouse or child” to derive status from the primary beneficiary of various sorts of I-130 and I-140 petitions. In the context of both a “2A” preference petition for one’s child under 203(a)(2)(A), and an application by a derivative child under 203(d), one must determine whether the applicant for an immigrant visa or for adjustment of status still qualifies as a “child” by the time that he or she is eligible to obtain an immigrant visa or adjust status.

Pursuant to INA § 101(b)(1), a “child” ordinarily must be less than twenty-one years old. Thus, there is the possibility of “aging out”—of losing one’s status as a child by getting too old. INA § 203(h)(1) says that, as long as the person seeking to be classified as a child has sought to acquire LPR status within one year of visa availability, their age for these purposes is calculated by taking the age at the time of visa availability, and subtracting the time that the I-130 or I-140 petition was pending. In effect, it is as if the child stopped aging at the time the petition was filed, did not start again until the petition was approved, and then stopped again on the day that a visa number became available. (Beneficiaries of petitions that were pending on September 11, 2001, who would otherwise have aged out after that date, should also be able to subtract an additional forty-five days from their age pursuant to section 424 of the USA PATRIOT Act, as clarified by section 42.42, note 12.8(b.) of Volume 9 of the State Department’s Foreign Affairs Manual, available online at http://www.state.gov/documents/organization/87848.pdf.) If the CSPA-adjusted age under INA § 203(h)(1) is under twenty-one years, then the child – assuming that he or she otherwise qualifies as a “child”, such as by being unmarried – may still adjust status or obtain an immigrant visa under the 2A preference petition, or derivatively on the petition covered by INA § 203(d).

Retrogression complicates matters by creating the possibility that there may no longer be only a single “date on which an immigrant visa number becomes available”, but rather multiple such dates. If, for example, the Visa Bulletin for November 2010 said that a particular priority date was current for the first time, but the Visa Bulletin for January 2011 retrogresses the relevant cutoff date so that this priority date is no longer current, then there will be (at least) two dates on which an immigrant visa number becomes available for someone with that priority date. The first will be November 1, 2010, when the visa number initially became available. The second, following the retrogression, will be the first day of the future month on which the cutoff date finally moves far enough forward that the priority date is current again. In effect, the CSPA is looking to the date on which people pass through the door at the front of a waiting line, but the retrogression has caused many people who had just passed through the door to move backwards and go back outside the door. As the line moves forward, those same people will one day pass through the door yet again, creating a second date of visa availability.

USCIS has said, in a 2008 memorandum from Acting Associate Director Donald Neufeld (updating § 21.2(e) of their Adjudicators Field Manual) that is available online at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/cspa_30apr08.pdf, that “[i]f a visa availability retrogresses, and an alien has already filed a Form I-485 based on an approved Form I-130 or Form I-140,” then USCIS will “retain the Form I-485 and note the date a visa number first became available.” When the visa number again becomes current, this original visa availability date, having been locked in by the prior filing of the Form I-485 adjustment application, will be used to calculate the CSPA-adjusted age. If, however, a Form I-485 is not filed before retrogression, but only within a year of when the priority date next becomes current, then the CSPA-adjusted age is “determined using the subsequent visa availability date.” (The filing of an I-485 may not be the only way to lock in a CSPA age, since as discussed in a recent article and blog post by Gary Endelman and Cyrus D. Mehta, https://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus2010101843057&Month=&From=Menu&Page=4&Year=All and http://cyrusmehta.blogspot.com/2010/10/bia-continues-to-reaffirm-broad-sought.html, the Board of Immigration Appeals has indicated in unpublished decisions that one may seek to acquire lawful permanent residence for CSPA purposes without actually filing an adjustment application; that same logic ought to make it possible to lock in a CSPA-adjusted age before retrogression without actually filing the I-485, but relying on this would be very risky.)

Under the USCIS approach, therefore, you can lock in a child’s CSPA age if you file before a retrogression, but otherwise the child will in effect keep aging until the visa number becomes current again, and the child then seeks to acquire permanent residence within a year of this second date on which a visa has become available. The bright side of retrogression under the USCIS approach is that the subsequent visa availability date can give you another year in which to seek to acquire permanent residence, as long as the child’s adjusted age will still be under twenty-one on that second date.

The Department of State has indicated in Volume 9, Section 42.42 of its Foreign Affairs Manual, http://www.state.gov/documents/organization/87848.pdf, that its approach is similar but subtly different. Just as USCIS does with those who have filed an I-485, the Department of State will look to a child’s age at the first visa availability date if the relevant forms – which in the DOS context are the DS-230, Part 1, or a Form I-824 for a child following to join a principal applicant who adjusted in the United States – are filed within a year of that date and prior to the effective date of any retrogression. If not, the State Department will focus on whether the applicant had a full year to seek to acquire permanent residence before the retrogression:

In order to seek to acquire lawful permanent residence an alien beneficiary must actually have one full year of visa availability. If a visa availability date retrogresses . . . within one year of visa availability and the visa applicant has not yet sought to acquire LPR status, then once a visa number becomes available again the one year period starts over. The alien beneficiary’s age under the CSPA is redetermined using the subsequent visa availability date.

9 FAM 42.42 Note 12.7.

This apparent refusal by the State Department to give children a second chance after retrogression, if they had a full year to apply before retrogression and did not take advantage of it, may be stricter than the USCIS policy. Although the USCIS memo does not specifically address this situation, it strongly implies that whether a child has sought to acquire permanent residence within a year of visa availability can be measured from the second visa availability date that comes after a retrogression, regardless of how much time passed between the first visa availability date and the retrogression. That is, under the USCIS approach, if you miss your one-year deadline after the first visa availability date, you may get another chance if a retrogression followed by a second visa availability date occurs soon enough; under the Department of State approach, you will not.

Under either of these approaches, however, failing to move forward with the permanent residence process before a retrogressed Visa Bulletin takes effect can have dire consequences. If a child’s adjusted age is anywhere near twenty-one based on the first date of visa availability, then missing the opportunity to file before retrogression takes effect, and having to wait for a future forward movement to make a priority date current again after the retrogression, can easily lead to the child aging out. It is extremely risky to hope for a second visa availability date coming soon enough after a retrogression to allow a child’s adjusted age to remain under twenty-one. Therefore, it is essential that immigrants involved in CSPA-related cases affected by the retrogressions in the January 2011 Visa Bulletin act quickly to begin the process of seeking permanent residence before January 1.

(This post orginally appeared on www.cyrusmehta.com on December 26, 2010)

David Isaacson

THE SPIRIT IS AT THE AIRPORT, BUT THE FLESH IS IN THE UNITED STATES: UNDERSTANDING PAROLE

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By David A. Isaacson

One immigration concept which sometimes gives rise to confusion is that of “parole”. The most common use of parole at present is to allow in, pursuant to an “advance parole” authorization, aliens who have a pending application for adjustment of status under INA § 245 or certain other relief. Perhaps because of how routine it is for an applicant for adjustment of status to seek and utilize advance parole (although it can be extremely dangerous for applicants with previous unlawful presence in the United States), it is easy to forget how unusual parole really is, as a matter of what one might call immigration metaphysics.

Section § 212(d)(5)(A), which provides the authority to parole aliens into the United States temporarily, specifies that parole “shall not be regarded as an admission of the alien” and that after the purposes of a parole have been served “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant to the United States.” According to INA §101(a)(13)(B), as well, “[a]n alien who is paroled under section 212(d)(5) . . . shall not be considered to have been admitted.” Parole can be considered a “lawful immigration status” in some contexts, such as the list in 8 C.F.R. § 245.1(d)(1)(v) of how one may maintain status for adjustment purposes, but it is not an admission. The question arises, if an alien who is paroled into the United States shall not be considered to have been admitted, what should we consider has happened to him?

The Supreme Court has previously described an alien granted parole as “in theory of law at the boundary line” and not “legally ‘within the United States’”. Leng May Ma v. Barber, 357 U.S. 185, 189-190 (1958); Kaplan v. Tod, 267 U.S. 228, 230 (1925). In Leng May Ma, the Supreme Court denied an alien the opportunity to apply for what was then called withholding of deportation (the predecessor of what is now withholding of removal under INA § 241(b)(3)), on the theory that the statutory provision applying to aliens “within the United States” who would face persecution if returned to their home countries did not apply to a parolee.

To make the issue somewhat more understandable to nonlawyers, the author of this posting sometimes explains to clients that in effect their spirit has remained at the airport, and only their body has been allowed into the United States. They may think that they have been allowed into the United States, but actually they have only been allowed to physically wander around the country while DHS decides whether they should in fact be let in.

Appreciating the nature of parole can provide useful insight into otherwise-mysterious immigration phenomena. One which has been obscure to some is the policy announced in a 2000 memorandum of INS Acting Associate Commissioner Cronin, under which certain aliens formerly in H-1B status who re-enter the United States pursuant to a grant of advance parole rather than on their H-1B visa can seek and be granted extensions of stay as H-1B nonimmigrants. Being able to “extend” H-1B status would seem to imply that one had that status in the first place, and some have understood the Cronin memorandum to imply a sort of latent or inchoate H-1B status for parolees with an extant valid H-1B petition on their behalf. But this author believes that a Cronin memorandum “extension” is better understood as delayed admission of the paroled alien into the United States in H-1B status. As the Cronin memorandum puts it, “If the Service approves the alien’s application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.”

If a paroled alien is considered, as a matter of law, still to be waiting at the airport during the period of the parole, then DHS can decide to admit her in H-1B status as a new arrival would be admitted in H-1B status. Just as an alien who has entered on advance parole is often subsequently admitted as a lawful permanent resident by the grant of her adjustment application – analogous to an immigrant who is admitted as an LPR following consular processing of an immigrant visa, except that no actual visa is required – an alien on advance parole can under the Cronin memorandum be admitted as an H-1B nonimmigrant instead.

One interesting implication of this view is that it suggests that unauthorized employment or other violations of the terms of H-1B employment by a paroled alien prior to an application for a Cronin memo “extension” should be disregarded by USCIS. Ordinarily, an admitted alien seeking an extension of stay must demonstrate continuity of status and a lack of status violation, although USCIS does have the authority to excuse a gap in status pursuant to 8 CFR 214.1(c)(4) if “[t]he alien has not otherwise violated his or her nonimmigrant status,” 8 CFR 214.1(c)(4)(ii). But there is no requirement as a matter of statute or regulation that an alien seeking admission as a nonimmigrant have previously maintained status, at least so long as the alien has not accumulated 180 days of unlawful presence as that term is defined in INA § 212(a)(9)(B) (which does not include many status violations). This is why it is sometimes possible for an alien with a valid nonimmigrant visa to resolve a prior status violation simply by exiting the United States, and being readmitted on that visa. Therefore, if we understand a Cronin memorandum “extension” as an admission of an alien whose spirit had remained at the airport, this admission can take place regardless of how the alien may or may not have been employed during the period of parole, for prior failure to maintain status or unauthorized employment would not bar admission as a nonimmigrant. On this analysis, the only difference between an alien who takes a trip outside the United States in order to return on a valid visa, and an alien who obtains a Cronin memorandum “extension”, would be that the latter did not need to leave the country because as a matter of law he or she was never truly here in the first place!

This analysis of the Cronin memorandum process could be useful in the context of an alien seeking adjustment of status under INA § 245(k), which forgives certain employment-based immigrants for periods of unauthorized employment or time out of status totaling less than 180 days. USCIS has asserted, in a July 14, 2008 memorandum from Acting Associate Director Donald Neufeld, that unauthorized employment continues to accrue for these purposes even after the filing of an adjustment application. But in the § 245(k) context, as the Neufeld memorandum acknowledges, the total amount of time under the 180-day clock is measured from the alien’s most recent admission. Since parole is not an admission according to INA § 212(d)(5)(A) and § 101(a)(13)(B) (and according to the Neufeld memorandum), but it appears that an “extension” under the Cronin memorandum is an admission, an alien subject to the Cronin memorandum who has entered on advance parole should be able to reset his or her § 245(k) clock to zero simply by obtaining admission as an H-1B nonimmigrant via a Cronin memo “extension”. The prior time on the § 245(k) clock should then be wiped out just as it would had the alien left the United States and been readmitted as an H-1B nonimmigrant.

The here-but-not-here nature of parole as explained in Leng May Ma and its predecessors has other interesting implications, as well. Strictly speaking, although the author knows of no case in which this argument has been made, Leng May Ma implies that parolees whose parole expires or is revoked cannot then become inadmissible under INA § 212(a)(9) for unlawful presence accrued between that time and their subsequent departure from the United States—because as a matter of law, they were never here! It is difficult to see how an alien can be unlawfully present if he or she is not present.

Some provisions of the INA, such as that in INA § 240A(b)(1)(A) authorizing cancellation of removal for certain nonpermanent residents, refer to an alien who “has been physically present” in the United States for a particular amount of time, which would include a paroled alien whose body is physically within the United States even if as a matter of law the alien is not really here. However, INA § 212(a)(9)(B) does not include such a reference. Although Congress apparently knew how to differentiate between mere physical presence and full-fledged legal presence, in INA § 212(a)(9)(B) they referred to an alien who is “unlawfully present in the United States,” defined further in § 212(a)(9)(B)(ii) as one who “is present in the United States after the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” The even-harsher so-called “permanent bar” provision at INA § 212(a)(9)(C)(i), regarding aliens who enter without inspection after previous unlawful presence, similarly refers to one who is “unlawfully present”. The statute could have referred to one “unlawfully physically present in the United States” or “physically present in the United States after the period of stay authorized by the Attorney General”, but it did not. Thus, the argument can be made that a parolee whose parole has expired or been revoked should not be deemed unlawfully present for purposes of § 212(a)(9)(B)-(C), because under Leng May Ma and Kaplan he or she has never truly come into the United States at all.

Cora-Ann Pestaina

PERM AND THE ROVING EMPLOYEE

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by Cora-Ann Pestaina

Practitioner to Employer Client: We can certainly assist you in the filing of a PERM application for your employee. Where will the employee be working?

Employer Client: Well, he will work out of his home in New Jersey and additionally at three different client sites in Pennsylvania, New York and Connecticut.

Practitioner: *silent groan* This will require some special attention.

Filing a labor certification for a roving employee is akin to navigating a minefield. One tiny “mistake” and BOOM! It doesn’t matter that there is precious little guidance from the DOL to begin with. The DOL will happily issue you that denial listing in nice, bold print the various “obvious” reasons why you did not draft the advertisement correctly, recruit correctly or use the proper prevailing wage, etc.

A lot of what we now know about filing a labor certification for a roving employee has been learned through trial and error. The above scenario is merely one type of roving employee. The most common type of roving employee is the IT consultant who will not work at the employer’s headquarters but instead will be assigned to one or more known or unanticipated client sites. As described in the scenario above, a roving employee could also work from home and visit various client sites confined to one region or spread throughout the US. The issues surrounding roving employees include ensuring that the advertisements contain all the required language and choosing the location out of which to base the recruitment and the prevailing wage determination and deciding where to post the Notice of Filing.

In the ordinary course, a labor certification is filed in the area of intended employment. The Department of Labor’s regulations require an employer to prove through a test of the labor market that there are not sufficient workers in the US who are able, willing, qualified, and available at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. In the case of the roving employee, where the area of intended employment is presently unknown or subject to constant change, it becomes difficult to determine the location where the labor certification should be filed and thus where the recruitment should be performed and the prevailing wage obtained. The statute or the regulations are both silent on this issue. As indicated in a paper analyzing recent BALCA decisions by Cyrus D. Mehta for the AILA New York Immigration Symposium on December 1, 2010, the most recent guidance comes from a decision by the Board of Alien Labor Certification Appeals (BALCA) in Amsol, Inc., 2008-INA-00112. In Amsol, the employer filed several labor certifications listing its address as Casper, Wyoming and the address where the aliens would work as “Casper, WY and any other unanticipated location in the US.” The employer argued, and BALCA agreed, that the employer should be governed by the Employment and Training Administration’s Field Memorandum No. 48-94 (May 16, 1994) § 10, which provided that “[a]pplications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.” In Amsol, BALCA referenced Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007) and pointed out that the mere business presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location. In Paradigm the employer’s office in Erie, PA was not the appropriate location for a labor market test where the offered position involved unanticipated locations because the prevailing wage in Erie, PA was lower than the prevailing wage at the employer’s headquarters in Columbia, MD. Accordingly, at least in the most common case of the roving employee, where a job will involve various unanticipated work sites, the employer’s headquarters is accepted as the appropriate location for filing the labor certification. Following that, it is also therefore acceptable to obtain the prevailing wage determination from that location and to post the Notice of Filing at the employer’s headquarters. In Amsol, it was also important that the employer advertised in a national magazine, demonstrating that the employer did not choose Casper, WY in an attempt to test the market least likely to provide qualified US workers.

The less common issue of the home office has not yet been the subject of a BALCA decision. What should the employer do when the employee works from home in a location that is different from the employer’s headquarters? Thus far, the only DOL guidance can be found in the minutes of a March 15, 2007 DOL Stakeholders meeting which can be found at AILA Doc. No. 07041264. On the subject of the home office, the minutes read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer’s headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer’s headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee’s region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company’s headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite.

AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

The DOL’s response to the Stakeholders’ query indicates that the choice is left to the employer. If the employer lists the worksite as the employee’s home then the employer can perform recruitment and also request the prevailing wage from the location of the employee’s home. Alternatively, the employer can list the worksite as the employer’s headquarters and recruit out of that location. However, if adopting this alternative strategy, the employer should be mindful to conduct recruitment that also covers the home office (e.g. recruitment that is national in scope). Additional guidance was also provided in the following question which was asked and answered as follows:

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer’s headquarters.

Please see answer to number 19 above.

This guidance also indicates that whenever the job requires work in various locations, the employer may post the Notice of Filing at the company’s headquarters.

But what should the employer do when the employee will work from home, in a location different from that of the employer’s headquarters and will also work from unanticipated locations throughout the US? From the DOL’s response to the Stakeholders’ queries, it would appear that the employer could recruit in the location of the employee’s home. However, in such a case, the employer should take pains to show that it is not filing from the employee’s home location in an attempt to lower the prevailing wage or to minimize US worker applicants. As in the Amsol case, the best course of action would be to obtain prevailing wages for both the employer’s headquarters location and the employee’s home location and ensure that the offered wage exceeded the higher of the two and, also ensure that at least one of the additional three forms of professional recruitment is national in scope. The Notice of Filing can be posted at the employer’s headquarters. The above mentioned Stakeholders Meeting minutes provided further guidance as follows:

21. For purposes of completing ETA-9089, if an employee works from home, what address should be identified in H.1 and H.2–the actual home address of the employee or the address of the employer’s headquarters or office from which the employee is based/paid?

Please see answer to number 19 above.

Final Note: When a job is regional, such as an employee working out of a home office but travelling throughout a specific geographic area, the analysis of where to obtain the prevailing wage and recruit can be thorny. Prior to PERM guidance was that the prevailing wage would be determined where the majority of duties are performed. Best practice under PERM would be to use the highest wage within the region/MSA and recruit in the regional edition of a nationwide paper. This gets complicated as there are few nationwide papers with regional editions or newspapers that could be considered regional.

As in the scenario described at the beginning of this article, what if the employer is located in one state, the employee will work from home in another state and also in three other specific states in the region? Again, this issue has not been directly addressed by the DOL. But, employers should ensure that recruitment is performed in the manner best likely to discover qualified US workers. As described above, the employer could recruit from the location of the employee’s home choosing the regional edition of a national newspaper as one form of recruitment; ensure that prevailing wage exceeds the highest of the prevailing wages for each state in which the employee will work; and post the Notice of Filing at the employer’s headquarters.

With regard to roving employees, it is critical that the employer’s advertisement inform US workers that a “home benefit is available” or that the worker “must be willing to work anywhere in the US” or that “travel is required.” Any such requirement must also be included in the prevailing wage request and in Box H.14 on the ETA Form 9089 lest the employer be accused of offering conditions in the advertisements that were less favorable than those offered to the alien in violation of 20 CFR § 656.17(f)(7).

It would seem that the DOL has adopted a “You will know if you made the wrong choice when the PERM gets denied” attitude to the issue of the roving employee. At the recent AILA PERM Conference in New Orleans, many practitioners expressed ongoing frustration with the lack of guidance. Learning through trial and error is not acceptable for a process as costly as PERM and practitioners can ill-afford to demonstrate an inability to correctly advise clients. Another AILA Stakeholders meeting was held last week and roving employee issues were certainly on the list of questions for the DOL. While holding one’s breath is not suggested, the minutes of that meeting will hopefully shed some well-needed light on this tricky issue.