Advertisement Order

In a well reasoned argument, Symantec Corporation, 2011-PER-1856, en banc, BALCA overruled a previous en banc decision, Credit Suisse Securities, 2010-PER-103, which held that advertisements for professional positions must list the requirements for the specific job offer and not for the occupation in general.

Professional vs. Non-Professional

The criteria for the proper choice of newspapers for each city are not explained in the PERM regulations. This is not surprising, because the government could hardly direct private employers to use one newspaper and not another.

The PERM Rule requires two Sunday ads for all applications, but under certain circumstances, the second Sunday ad may be a Professional Journal. This journal ad in lieu of a second Sunday newspaper should not be confused with the separate requirements for professional positions, which include a selection of three out of ten additional recruitment efforts, among which is the option to advertise in a professional journal.

As the focus of this blog is on recruitment, we always start with an analysis of the prevailing wage request form 9141, the instructions found on the form itself, additional instructions found in a separate instructional document, the federal register, including OMB approval, and the agency’s memos and policy statements. We do all this before referring to administrative law decisions which interpret same.

I want to thank Kiran Vairale from AdNet Advertising Agency for joining me to present workshops on PERM recruitment issues. Recently, we made presentations in San Francisco at the IlW PERM Workshops and at the offices of the Fakhoury Law Group in Troy Michigan. Kiran brings to the table an up-to-date knowledge of PERM advertising and media issues throughout the US.

Job applicants who apply for PERM positions must be US Workers, a term defined in the PERM Rule to include some, but not all, referrals for the position. This term of art embraces only U.S. Citizens, U.S. Nationals, Permanent Resident Aliens, Asylees, Refugees and Amnesty Applicants encompassed by Section 1255a(a)(1) under the Immigration Reform and Control Act of 1986.

The PERM Rule requires two Sunday ads in a newspaper of general circulation in the area of intended employment most appropriate to the occupation and most likely to bring responses from able, willing, qualified, and available U.S. workers.

An important issue now arising in supervised recruitment is how to document electronic recruitment.

While the INA and the PERM Rule are silent on this subject, we may recall that there is a hierarchy of legal precepts in administrative law.

The PERM application Form 9089 and the Prevailing Wage Form 9041 have specific rules, interpretations and policies that control the Employer’s minimum requirements, including education, training, experience and special requirements.

Under the employment-based categories for foreign workers, a certification of no-availability is required in the form of a PERM approval processed by the U.S. Department of Labor.  Applications certified by DOL can then be used to file immigration visa petitions in the 2nd or 3rd preference category.

PERM Practice has evolved since March 28, 2005, when the DOL launched it as a miracle solution to the extensive backlogs that existed at that time. To refresh your memory, the permanent alien labor certification program was bogged down in the bureaucracy of state and federal departments of labor, which had extensive and inexplicable delays in processing, sometimes in excess of five years.

According to USCIS guidelines, "arts" have been interpreted to include "athletics," thus permitting petitions for athletes under the first three employment immigrant visa categories.

Some professional athletes can be processed for permanent residency under the EB-1 category for extraordinary ability in the sciences, arts, education, business or athletics, and therefore do not require a PERM application.

BALCA - the Board of Alien Labor Certification Appeals - was created by regulation on April 8, 1987, to review decisions from Certifying Officers. The intention of the Board was to create uniformity and consistency in the review process by administrative law judges, however, it is important to note that BALCA decisions are not precedent in nature nor are Certifying Officers required to follow BALCA decisions.

Anyone who wants to prepare, file and process PERM applications should have a copy of the regulations (20 CFR 656)  at their side.  Collectively called “The PERM Rule,” the regulations became effective on March 28, 2005, but have been amended at different times thereafter.

In the Preamble to the PERM Rule we find Appendix A, “Education and Training Categories by O*Net-SOC Occupation.” The Appendix is not codified in the Code of Federal Regulations. This means that the only place the Appendix appears is in the Preamble to the PERM Rule or in references to the Appendix in subsequent memos, such as the May 9, 2005, revision of the Prevailing Wage Memorandum.

The DOL has given advertising guidance in several different sets of questions and answers in the form of FAQ’s and in conversations with stakeholders at conferences and meetings, but industry practice and common sense are also important factors to take into consideration.

As explained last month, employers must conduct a good faith recruitment to find suitable US workers.  This requirement is well developed in DOL Regulations, Decisions of the Board of Alien Labor Certification Appeals, Instructions on the PERM Form 9089, Frequently Asked Questions, Stakeholder Meetings and Memoranda of the Department of Labor.

There is a distinction between job referrals and job applications in PERM processing. Referrals may be persons who have been referred to the Employer, but they must perfect an application procedure before they may be considered to be bona fide applicants for the job.

Previously we discussed the first three types of professional recruitment: (1) Job Fairs, (2) Employer’s Web site, (3) Job Search Website other than employer’s, (4) On-campus Recruiting, and (5) Trade or Professional Organizations.

This month we continue with a discussion of the five remaining types of Professional Recruitment, including Private Employment Firms, Employee Referral Program with incentives, Campus Placement Offices, Local and Ethnic newspapers, and Radio and Television Advertisements

At first glance, this topic with 10 methods of recruitment and advertising for professionals appears easy because professional recruitment is described with great brevity in the regulations. However, upon further examination, it becomes apparent that the requirements and methods of reporting are complex and anomalous. We will cover the first five forms of Professional Advertising this month, and the remaining five next month.

The PERM Rule defines Non-Professionals as persons who are not Professionals, and Professionals are defined as those persons whose occupations are on a Schedule maintained by the DOL. The Federal Register refers to this list as Schedule A in the Preamble to the PERM Rule of December 27, 2004, but the same list is reproduced as Schedule D in the Prevailing Wage Guidance (FAQ) dated May 9, 2005.

Many persons think that a Notice of Filing is part of the recruitment process, because it has to be posted on the wall at the Employer’s place of business for 10 working days  but in actual fact, the Notice of Filing is just an opportunity for the public, especially employees at the work-place, to be informed that the Employer is offering a position to an alien worker.

Under the PERM Rule, the word "professional" is a term of art that refers to a list of occupations which the DOL considers to be "professional.” This meaning is not the same as the one used by USCIS in Employment based Immigrant Preference classifications or in three-to-one equivalencies under the H-1B Rule.

Special requirements, as the name suggests, are unusual because they are not normal in the U.S. to perform the job duties for a specific occupation. The PERM Rule does not deal with this topic systematically, so we need to cull information from different parts of the regulations.

The basic resource on the subject of prevailing wage determinations is the U.S. Department of Labor’s "Prevailing Wage Determination Policy Guidance, Nonagricultural Immigration Programs" (with Appendices) of May 9, 2005. 

The National Prevailing Wage and Helpdesk Center (NPWHC) of the U.S. Department of Labor now administers the prevailing wage determination (PWD) process. In December, 2009, the NPWHC issued a set of Frequently Asked Questions (FAQ) that every practitioner should consult.

Because the PERM Rule states that employer requirements to perform job duties must be minimal and must be established to find entry level, or minimally qualified workers, and not highly qualified workers, discriminating and rigorous requirements for PERM occupations are in violation of government standards.

The US Department of Labor has categorized all the jobs in the USA into a catalog format. For many years, the Dictionary of Occupational Titles was the repository of all these jobs (more than 10,000 strong) but with the advent of PERM...

Starting with the next edition, Adnet now offers PERM 101, a course on labor certification practice, as part of its monthly newsletter for newcomers and old-timers alike.

Opinions vary among attorneys and employers as to who may be qualified to apply for labor certification under PERM. One school of thought is that the alien must possess extremely unusual qualifications that no workers in the United States possess. The other school of thought is that anyone may apply for certification, even workers without any qualifications at all!

The PERM Rule defines an employer as a person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States, or the authorized representative of such a person, association, firm, or corporation.

I saw an article on a TV news journal called "No Vacation Nation!"  They compared the culture of vacation in various countries.

I was asked to review a file this weekend. The application was made for a specialty cook, and the PERM application was approved. The problem arose when the I-140 was filed.

It is good to be reminded that PERM is only used for 2nd and 3rd preference I-140 petitions, and not for 1st, 4th or 5th preference.

It's no secret that O*Net is a constantly changing database, with new interpretations appearing almost every day of the week!

Many thanks to Ann Kantor, a colleague from Sacramento, California, for sharing an interesting Prevailing Wage issue with us.

In California,  the State Workfoce Agency issued a Prevailing Wage Determination for only 90 days.

There is a question on the PERM Form that inquires "Wage Offer". The question, located in Part G on Form 9089, is different from another question, "Wage Range." There is also a third question, "Prevailing Wage," which may be neither of the above.

I received a two-part question regarding alien qualifications fora PERM and employment based immigrant visa petitions:

1. Can unpaid employment "count" for experience for a labor certification application?

An Employer recently lamented a PERM Denial. The Employer offered a position of Operations Manger with requirement of a Bachelor's Degree plus two years experience OR 12 years experience (in lieu of a Bachelor's Degree) plus two years experience in a PERM application.

I received a question about the prevailing wage Validity Period for PERM:

The attorney recently received a PERM case denied because the adjudicator stated that, according to Section 656.40(c) "to use a SWA prevailing wage determination, employers must begin recruitment or file their application within the validity period specified by the SWA."

Here is an example of a Motion to Reconsider that may be used if the PERM Form 9089 has the wrong dates for recruitment. This Motion is in accordance with recent DOL Guidelines that authorize reconsideration in some types of cases.

Last week I stirred up quite a hornet’s nest with a Blog about third preference skilled workers who can "bump" up to second preference.  There is definitely a lot of interest in this subject, due to the current backlog of 3rd preference -- almost seven years -- and the current availability (no backlog) of 2nd preference visas for most countries.

Many people are currently in the unfortunate situation of waiting for permanent residence on the third preference with a backlog of many years and no way to bring their cases to a happy conclusion.

In previous weeks we discussed the possibility of filing 2nd preference exceptional ability petitions for third preference cases containing minimum requirements in accordance with DOL standards.

We noted that the DHS rule states,

A PERM case can be revoked for almost any reason. Most people think that it should be revoked only for fraud, while this was true for labor certifications filed before PERM (March 28, 2005), under the PERM Rule, an approved labor certification can be revoked for a simple error.

PERM cases, approved by the U.S. Department of Labor, are the first step in the process to become a U.S. Resident. The procedure requires the Employer to file an application for PERM, and then an I-140 Immigrant Visa Petition with the U.S.C.I.S. (Department of Homeland Security). In both these instances, the Employer is the one who must take action on behalf of the alien beneficiary.

Almost any Employer can file a PERM case.

According, to Federal regulations the Employer can be a corporation, partnership (including joint venture) or sole proprietorship, and can also be either a US entity or foreign, except that foreign entities need to have a location in the US where workers can be referred for interview, plus a FEIN (Federal Employment Identification Number).

We previously wrote about the fact that the federal government would take over the prevailing wage function of PERM. The change would remove this function from the state governments.

The original PERM rule in 2005 stated that if an application is denied, the employer may file a Motion to Reconsideration (MTR).

However, according to the Rule, the Employer could not include any evidence that was not previously submitted to DOL.

I first got the idea of possible bias in Labor Certification processing when I noticed years ago that many of the NOFs (Notices of Findings) and Denials of labor certification applications were issued to Employers and Aliens with certain kinds of national origin.

Just when we thought we understood that errors are not permitted in PERM applications -- that the forms must be completed 100% with all the i's dotted and the t's crossed to the point of zero tolerance, and just when we thought that motions to reconsider may include new evidence in the nature of motions to reopen, BALCA has opened the door once again to a more liberal interpretation of non-material errors on Form 9089.

Many people are still confused about the way to make changes of address, name or attorney representation on a PERM application.

The DOL has tried to clarify this in its Frequently Asked Questions.

The PERM regulation requires that an I-140 petition for an approved PERM case be filed within 180 days after approval of the labor certification.

The 180 days can pass very quickly, and many unwary employers and/or attorneys find themselves with little time to file the petition and even miss the deadline.

In the pre-PERM law (until March 28, 2005), the Department of Labor's regulations were very specific about photocopies of ads. No photocopies were accepted. Only originals tear sheets!