Tag Archive for: Labor Certification

Cyrus Mehta

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

/1 Comment/in /by

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

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

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

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

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

Cora-Ann Pestaina

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

/0 Comments/in , /by

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

BALCA applies Matter of Symantec

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

/0 Comments/in , /by
by Cora-Ann V. Pestaina

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

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

/0 Comments/in /by

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

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

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

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

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

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

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

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

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

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

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

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

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

Cyrus Mehta

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

/2 Comments/in /by

By Gary Endelman and Cyrus D. Mehta

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

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

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

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

Under Tier 1, points will be assigned as follows:

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

D. Entrepreneurship

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

E. High Demand Occupation

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

F. Civic Involvement

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

G. English Language

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

H. Siblings and Married Sons and Daughters of Citizens

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

I. Age

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

J. Country of Origin

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

Under Tier 2, points will be assigned as follows:

A. Employment Experience

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

B. Special Employment Criteria

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

C. Caregiver

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

D. Exceptional Employment Record

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

E. Civic Involvement

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

F. English Language

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

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

G. Siblings and Married Sons and Daughters of Citizens

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

H. Age

An alien who is:

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

I.     Country of Origin

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

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

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

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

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

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

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

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

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

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

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

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

Cora-Ann Pestaina

PERM Audits Request Sworn Declarations Regarding Improper Payments

/1 Comment/in , /by

Recently, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) published its factsheet with statistics on the PERM program for FY2012 covering the period from October 2011 to September 16, 2012. Of the 67,400 PERM applications received during that period, 45% were audited for review. While audit notifications discussing the employer’s use of an employee referral program, roving employees, or bearing requests for the resumes of all applicants are so frequently issued that they have almost become par for the course, the newest audit request came as quite the surprise. The latest audits now request declarations from the employer and the foreign worker, each signed under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification. Specifically, the audit request states:

Please provide declarations from the employer and the foreign worker, each signed by the respective individual under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification, including payment of the employer’s attorney’s fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application. Such payments include but are not limited to legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process.  Note that any payment of fees by the foreign worker or third party for the benefit of the employer constitutes a “receipt of payment” by the employer, despite the fact that such payments may have been made directly to a party other than the employer – e.g., the employer’s attorney, Department of State, etc.

If any such payments were made, please provide a list outlining the payment amount, who made the payment, to whom payment was made, dates, and the purpose of the payment.

If payments were received from a third party to whose benefit work to be performed in connection with the job opportunity would accrue, please provide documentation explaining both the business relationship between the employer and the third party and the benefit of the work performed, or to be performed, in accordance with the Department’s regulations at 20 CFR § 656.12(c).

If payments were made to the employer by the foreign worker as a result of an agreement/contract entered into prior to July 16, 2007, please provide documentation evidencing both that an agreement existed and that it was entered into prior to July 16, 2007. Examples include the contract, the agreement or a declaration signed by both the employer and the foreign worker under penalty of perjury, in the case of oral agreements.

The issue of payments for activity related to obtaining permanent labor certification first came up when the DOL published its final rule to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States” which took effect on July 16, 2007. See 72 Fed. Reg. 27,903-27,947 (May 17, 2007). The rule revised the regulations found at 20 CFR §656 and implemented substantial changes to the labor certification process, including prohibition on the sale, barter, or purchase of labor certification applications and a requirement that employers pay all attorney’s fees and costs associated with labor certification. The rule also made unenforceable any employer agreements requiring employees who leave within a certain time period to pay reimbursement costs associated with the labor certification. In passing this rule, the DOL rationalized that a prohibition against the transfer of labor certification costs from sponsoring employers to foreign national beneficiaries keeps legitimate business costs with the employer, minimizes improper financial involvement by aliens in the labor certification process, and strengthens the enforceability of the bona fide job opportunity requirement. All reasoned opposition to the rule prior to its promulgation fell on deaf ears.

On July 16, 2007, the DOL also issued a FAQ to clarify certain aspects of the rule. The FAQ explained that pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity (including recruitment activity and the use of legal services) related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign national beneficiary will benefit that party. The preamble to the rule provided the example of physicians who frequently have split appointments between a Veterans Affairs Medical Center (VAMC) and an affiliated institution of higher education. In these cases, although there is one “employer of record” who files the labor certification application, the university, as a legitimate third party, could reimburse the VAMC for costs associated with the labor certification.“Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor.  This includes the prohibition against the alien paying the employer’s attorneys’ fees in connection with the labor certification application.

The FAQ clarified that an employer, or attorney representing an employer, who entered into a contract where payments from the foreign national are either owned after July 16, 2007 or owed prior to July 16, 2007 but not paid until after that date, have the right to seek the payment provided the payment obligation accrued prior to July 16, 2007. The employer must answer YES to Question I.e.23 on the ETA Form 9089 which asks, “Has the employer received payment of any kind for the submission of this application?” Then, the employer must explain and provide supporting details in I.e.23-A which states, “If Yes, describe details of the payment including the amount, date and purpose of the payment.”

The FAQ also explained another exception to the rule which provides that “attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity.” The rule also did not prohibit the alien from paying fees associated with the subsequent visa petition (Form I-140) and the adjustment of status application (Form I-485).

Pursuant to §656.20(a), an audit letter may be issued by the DOL if a labor certification is randomly selected for quality control purposes, or if, after reviewing the application, the certifying officer finds more information is needed before a determination can be made. Neither of these reasons justifies this new request for declarations. Questions I.e.23 and I.e.23-A on the ETA Form 9089 already address the issue. In response to an audit, the employer must submit a copy of the submitted ETA Form 9089 with original signatures in Section L (Alien Declaration),  Section M (Declaration of Preparer (if applicable)), and Section N (Employer Declaration) to affirm that the information listed is true and accurate. As clearly stated on the ETA Form 9089, each declaration must be signed under penalty of perjury.  In light of this, it is not clear why additional sworn declarations are now being requested. In any event, it is important to respond truthfully.

If the employer did not receive payments from the foreign national or a third party, the employer may submit a signed and notarized statement as follows:

[Employer name] did not receive payment of any kind from the [foreign national] or from a third party for any activity related to obtaining permanent labor certification. 

[Employer name] did not receive payment for the legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the labor certification application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

The foreign national may submit a signed and notarized statement as follows:

I did not pay [Employer name] any fees in relation to the filing of a labor certification application on my behalf.  

[Employer name] did not receive payment from me for the legal fees, administrative fees, advertising costs and/or any other costs or fees related to the filing of the application. Also, [Employer name] did not ask me for any wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

Only time will tell whether this new request will become another audit standard. It is essential that practitioners inform new clients and remind existing clients of the rule regarding payment of fees in connection with a labor certification. It is understandable why an employer would want to seek some type of protection, e.g. through employer agreements for reimbursements, against spending thousands of dollars to sponsor a foreign national only to have him leave the moment he obtains permanent residence. But employers must also be informed that the DOL, under §656.31(a), may deny any labor certification if the certifying officer finds the application contains false statements, is fraudulent or otherwise submitted in violation of the DOL’s regulations. Under §656.31(b) the DOL may, if it learns that an employer, attorney or agent is involved in possible fraud or willful misrepresentation, refer the matter to the Department of Homeland Security or other appropriate governmental authority and suspend processing of any labor certification involving the employer, attorney or agent until completion of any investigation. Under §656.31(f) the DOL may debar an employer for up to three years upon a determination that the employer has participated in or facilitated “the sale, barter or purchase of permanent labor applications or certifications, or any other action prohibited under §656.12” or “the willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification” or “a pattern or practice of failure to comply with the terms of the Form ETA 9089.” Finally, the DOL could, under §656.32, take steps to revoke an approved labor certification if it is later found that the certification was not justified.  It is obvious that the issue of improper payments is one that must always be taken very seriously.