PERM Developments and Problems

byAlan Lee, Esq.

Moving through the summer of 2013, the Department of Labor (DOL) has added a couple of new wrinkles along with problems to PERM processing, and its appellate body, The Board of Alien Labor Certification Appeals (BALCA) recently issued three favorable rulings, one of which may or may not be shaky as a panel decision disagreeing with other prior panels but appearing to embrace a more flexible approach consistent with a 2012 en banc ruling.
  1. PERM processing times as of July 1, 2013 were 1/24/13 for analyst reviews; 7/31/12 for audit reviews; 7/1/13 for reconsideration requests to the Certifying Officer; and “current” for government error reconsideration requests. The analyst review date means that cases submitted by that date are being reviewed; the audit review date is the date of filing for those cases that received audits and in which responses were submitted; the reconsideration requests to the Certifying Officer date is the appeal filing date for which cases submitted by that date are being reconsidered; and the government error reconsideration request date means that the reconsideration requests are being worked on as soon as they are received.
  2. The new ETA 9141 form appears to be more comprehensive than the old one as it has new spaces for whether employers are requesting consideration of collective-bargaining agreements, Davis-Bacon or McNamara Contract Acts, any other surveys with space to name the surveys/ dates of publication, and whether people being supervised are peers or subordinates. It also features expanded questions on travel asking the employer to “please provide details of the travel required, such as the area(s), frequency and nature of the travel” as opposed to the old form’s “please explain the travel requirements”; does away with the ambiguous question of whether there are other working conditions affecting the rate of pay; and hones in on multiple worksites asking the employer to “identify the geographic place(s) of employment, indicating each metropolitan statistical area (MSA) or the independent city(ies)/township(s)/county(ies) (borough(s)/parish(es)) and the corresponding state(s) where work will be performed. If necessary, submit a second completed ETA form 9141 with a listing of the additional anticipated worksites.” The former 9141 only asked the employer to “identify the geographic place(s) of employment with as much specificity as possible. If necessary, submit an attachment to continue and complete a listing of all anticipated worksites.”
  3. The Office of Foreign Labor Certifications (OFLC) now features the labor certification registry on the iCert visa portal system website. That provides redacted copies of LCA’s for H-1B, H-1B1, E-3 (among others) and permanent labor certification documents. Such may prove to be a good reference tool for labor certifications.
  4. There are now reports that DOL is denying PERM applications due to overly broad education requirements, e.g. requiring a degree in the fields of “engineering” or “business.” In one denial for senior programmer, DOL said not all “engineering” degrees would give an applicant the necessary skills to perform the duties of a computer systems analyst. Practitioners may wish to narrow the field of qualifying educational degrees although this does seem to run counter to DOL’s stated goal of opening up the jobs to as many U. S. workers as possible.
  5. In Seven-Oaks Landscapes –Hardscapes, Inc. (7/26/13), a BALCA panel found that even though the employer did not confirm the posting dates of the notice of filing (NOF), that was unnecessary as the ETA 9089 form requires the employer to affirm under oath that the NOF complied with the regulation of posting for 10 business days in a conspicuous location at the place of employment, ending at least 30 days before but not more than 180 days before the date the application is filed; and the employer in the case properly affirmed on the form that the notice was posted for 10 consecutive business days within the specified period, and therefore met its posting obligation. This position may be controversial, however, as prior panels of BALCA came to the opposite conclusion. The facts of the case may also have had something to do with the decision as the employer’s audit response could not be located despite having been acknowledged as received by the Certifying Officer. On the other hand, the case may reflect a trend which was seen in the recent BALCA en banc decision, A Cut above Ceramic Tile (3/8/12), in which the en banc Board held that based on a reading of the plain language of the PERM regulations, an employer is not required to submit a copy of its job order as proof of the recruitment step, because the regulations state “the start and end dates of the job order entered on the applications serve as documentation of this step.”
  6. In Architectural Stone Accents, Inc. (7/3/13), a BALCA panel found that notwithstanding the fact that the NOF did not include the Spanish-language requirement, such could be excused on the reasoning that the regulations at 20 CFR §§656.10 (d) and 656.17(f)(1) (as incorporated by reference) provide in detail what an NOF must include; that the regulation cited by the Certifying Officer for denial, 20 CFR §656.17(f)(3) as incorporated by §656.10(d)(4), does not affirmatively mandate that all job requirements be listed on an advertisement; and that the regulation only requires that an advertisement “provide a description of the vacancy specific enough to apprise the U. S. workers of the job opportunity for which certification is sought.” The panel pointed out an Employment and Training Administration (ETA) FAQ answer on advertisements that as long as an employer could demonstrate a logical nexus between the advertisement in the position listed on the employer’s application, the employer met the requirement of apprising applicants of the job opportunity. It then extrapolated from the answer that as the ad only had to be specific enough to apprise U. S. workers of the job opportunity, it did not find the omission of the Spanish-language requirement in the NOF to offend the regulation as overall the text of the notice of filing was sufficient to apprise U. S. workers of the job opportunity.
  7. In the same vein of less rigidity in the above decisions, a BALCA panel in Chabad Lubavitch Center (7/29/13), held that where the ETA 9089 requirement was 24 months experience and the job order called for an experience requirement of “mid-career 2 – 15 years,” the requirement of 20 CFR §656.17(f)(6) that advertisements must not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA form 9089 was not offended as a job order is not an advertisement, there was nothing in the regulatory history suggesting that the Employment and Training Administration intended the section to apply to job orders, and that the panel was unwilling to add an additional, unwritten mandate for applicants.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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