Immigration Visa Lawyer Blog

In face of layoffs, most employers shy away from filing PERM applications under the erroneous perception that the PERM regulations prevent them from doing so. This article discusses the consequences of layoffs and processing PERM labor certification applications; it also discusses the employer's legal obligations in proceeding with the PERM application process despite recent layoffs.

I. PERM and Layoffs

The collapse of the financial infrastructure in the US has had a Domino effect on every sector in our economy. As a result, many organizations find themselves in economic crisis which resulted in massive layoffs almost in every aspect of our workforce. Notwithstanding layoffs, organizations still desire to process permanent labor certificate applications on behalf of certain foreign national professionals. PERM regulations, however, place certain restrictions on organizations and firms which experienced layoffs that could prevent them from taking advantage of this program.

II. History of the PERM Process

PERM stands for Permanent Electronic Review Management introduced by the US Department Labor in March of 2005 to replace the prior process which had been in existence since the 1980's. The regulatory directives of the PERM process evolved from a predecessor process called Reduction In Recruitment ("RIR"). Even though PERM regulatory provisions have their roots in the prior RIR process, RIR itself was an ad hoc administrative procedure introduced by the USDOL during the Y2K era. At that time, there was a documented shortage of certain professionals in the information technology filed which necessitated an agile administrative process for the permanent employment of certain foreign professionals. Hence, RIR was a modification of a prior process known as "supervised recruitment" for labor certification which was truly an administrative nightmare including overlapping steps between the State Workforce Agencies ("SWA")and the US Department of Labor. The SWA's approved the recruitment language and mode of recruitment and supervised all the resumes received throughout the recruitment process itself. It took more than 2 years to process a Labor Certificate application prior to the introduction of RIR. The most important aspect s of RIR process that survived the PERM regulations are the idea that all recruitment for the labor certificate application must precede the filing of the application itself.

III. Current Regulatory Directives and Layoffs

PERM regulatory provisions under 20 CFR §656.17(k)(1) require employers to provide notice and to consider all similarly situated U.S. workers which it had laid off within the same geographical area in the six months immediately preceding the filing of the labor certification. Put in different words, an employer may not successfully file a labor certificate application unless it engages in a specific process for consideration of all qualified US workers which it had laid off in the six months prior to filing the labor certificate application on behalf of a foreign national for a particular occupational classification. This process is intended to prevent US workers from dismissing US workers and replacing such US workers with foreign labor who are perceived to accept less favorable working conditions and compensation. This specific regulatory provision was not necessarily mandatory in the pre-PERM rules governing the RIR process. However, the Certifying Officer had authority to deny or remand the labor certificate application for additional recruitment if he believed that the specific occupational classification experienced layoffs within the geographic area. Hence, it is important to note that the current regulatory provision is an extension of the prior position the US Department of Labor had regarding layoffs.

It is important to remember that the PERM regulations have two important criteria that must be examined more closely. If there have been layoffs in the geographic area in the occupational classification that is the subject of the labor certificate application that the employer must notify and consider all qualified US workers who had been laid off within the prior six months. It is thus critical to understand in great detail what is considered layoff, the geographic area, and the particular occupational classification.

IV. Layoffs Defined in the PERM Regulations

The definition of layoff is rather expansive and it includes any involuntary separation of one or more employees without cause or prejudice. Any such separation that is characterized as "attrition," "reduction in force," "downsizing" or "restructuring" which results in the loss of US workers without cause is covered as layoffs pursuant to USDOL directives.

V. Occupational Classification Defined

In analyzing the effect of company layoffs on the manner in which the PERM application should proceed and in deciding whether the employer has an obligation to "notify and consider" qualified US workers who had been laid off in the six months prior to the filing of the PERM application it is important to understand how the regulations define the same occupational classification. If the employer is able to distinguish the occupational classification on which the PERM application is based, then it will not be subject to the "notify and consider" requirements. The regulations define an occupational classification is rather expansive, however. More specifically, the regulations focus on the "majority of the essential duties" not necessarily on the title of the position in question to determine whether the position giving rise to the PERM application is the same or "related" occupation. If comparison of the majority of the essential duties between the occupation for which PERM is sought are the same or similar to position wherein a US worker was laid off within the prior 6 months, then the employer is required to "notify" and "consider" US workers who were laid off within the six months prior. On the other hand, if the comparison between the position on which the PERM application is based and those of the laid US workers yields a significance in the majority of duties, then the employer is absolved from notifying or considering any US workers who had been laid off within the prior six months.

Example.

ACME Insurance Company is desirous to file a PERM application for a Programmer Analyst who works in its IT Department in the Washington DC. The immigration counsel was advised that the company laid off 150 employees within the last 90 days. The immigration counsel was concerned whether these employees need to be notified considered pursuant to regulations since they were laid off within the last six months. Upon examination of the position description of these laid off employees, it was discovered that they all were call center operators and not connected in any manner to the information technology field. On that basis, the immigration counsel determined that the "notify and consider" provision of the regulations does not apply.

It is for that reason that qualified and skilled immigration counsel should be consulted to make certain that the position giving rise to the PERM application is not considered similar or related to any potential position that has been or may be subject to layoff. It is that kind of planning that could make or break a PERM application in the face of today's layoffs.

VI. How Does the Employer Effectively "Notify and Consider" Laid Off Workers?

As mentioned, under PERM regulations, the employer wishing to file a PERM application for a foreign national whose job duties are similar or are related to that of US workers who were laid off or terminated without cause within the six months preceding the filing of a labor certificate application, must notify and consider such qualified US workers for the specific position. But what constitutes acceptable norms of notification and consideration? The answer is not clear in the regulations as they do not specify how the employer is required to notify such laid off US workers. The American Immigration Lawyers Association attempted to find out through liaison communication as to what the USDOL considers sufficient forms of notification. Would email, phone calls, or other forms of written communication suffice? The USDOL had not responded in approval to any of the aforementioned methods. Hence, it continues to be a mystery as to what constitutes proper notification methodologies. Competent immigration counsel will make certain that the employer documents every conceivable mode of communication with US workers to make certain that its attempts are considered within the realm of "good faith recruitment efforts" which underlie the PERM process.

Continue reading "Immigration Lawyer in Columbus, Ohio Re: PERM Processing in An Envorenment of Layoffs" »

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and the Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Continue reading "The Most Appalling and Unconstitutional Aspects of Arizona's SB1070 Blocked by Federal Court" »

The Board of Alien Labor Certification Appeals (BALCA) overruled the US Department of Labor (USDOL) denial of a PERM application on the basis that the employer insufficiently provided notice of the inventives in its pre PERM filing Employee Referral Program.

The US Department of Labor Certifying Office has recently been focusing on the sufficiency of the Employee Referral Program provided by employers as one of the alternative recruitment measures employers are required to undertake prior to filing of the PERM application. In a recent decision, the importance of meticulous compliance with the format requirements included in the PERM regulations was again confirmed in the decision of Total Systems Services Inc. handed down by BALCA recently.

By way of background, employers wishing to file for permanent residence under the second or third preference employment based categories for one of its employees in a professional occupation, must first file application with the US Department of Labor attesting that it had searched the market and that there are not any US worker who is qualified, able and willing to occupy such a position. PERM regulations are intricate and complex and they require the employer to engage in rigorous pre PERM filing recruitment measures to demonstrate that it had in fact tested the labor market in good faith. There are four levels of recruitment steps: 1) the employer must publish and advertisement in a newspaper of general circulation; 2) the employer must post a job order with the State Workforce Agency having jurisdiction over the place of employment; 3) the employer must also choose from ten (10) alternative recruitment steps; and finally 4) the employer must post an internal notice of the filing of a PERM application.

The employee referral program is one of such ten (10) alternative recruitment steps that could be chosen by the employer in its pre PERM filing campaign. It is an inexpensive recruitment step that the employer can easily implement. Even if the employer did not have an existing employee referral program, it can establish one for the purpose of a pre PERM filing recruitment process. The regulatory provision governing the employee referral program is somewhat tacit and can be found under 20 C.F.R. § 656.17. It states: The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered." Emphasis added. Recently the USDOL has been critical of any such "employer notices" which do not specify the "incentives offered." Put in other words, any notice posted by the employer in a recruitment steps involving an employee referral program must clearly state what gain an employee will realize if he or she referred a successful candidate to the employer in connection with the job vacancy. If the notice did not clearly post such an incentive, the USDOL is recently denying cases on this basis.

The employee referral program preceded the creation of the PERM process in the pre PERM labor certification Reduction In Recruitment ("RIR") rules. Those who practiced immigration law prior to the enactment of the PERM regulations in 2005 recall the RIR program. At that time, the USDOL came up with ad hoc rules which basically said that pre labor certification filing recruitment activities will forgive a supervised recruitment process. Under the RIR rules, the employer was required to show three recruitment steps which included at least one print advertisement. There were no rules about the format of the recruitment activities. Hundreds of thousands of labor certificate applications were filed and approved through a culture of loosely implemented recruitment campaigns including employee referral programs. This culture somewhat survived the introduction of the PERM regulations despite the clear definition of the PERM regulations in this subject matter. Recent enforcement measures by the US Department of Labor relative to the employee referral program will now force employers to sharpen their pencils when they are drafting such a recruitment step.

In Total System Services Inc., BALCA examined the sufficiency of the employer referral program utilized by the employer as one of its pre PERM filing recruitment steps. In reversing the US Department of Labor denial, BALCA stated that the employer's employee referral program recruitment step was adequate. In this case, Total System Services Inc.'s PERM application was audited by the USDOL. The employer submitted proof of its recruitment activities including a notice pursuant to its employee referral program. The notice stated:

For the Project Manager position, you may refer a friend by submitting resume to Kerri Alexander, Human Resource Manager, 1600 1st Ave Columbus, GA 31902

The USDOL denied on the basis that the employee referral program notice did not "specify the incentives offered" pursuant to regulations. The employer filed a motion for reconsideration arguing that the employer had separate documentation which clearly described the program in details and provided monetary incentives. Such additional documentation was provided to the company's employees via the intranet. This documentation was originally offered in the response to the audit request. The Employer further argued that the regulation at 20 C.F.R. § 656.24(g)(2)(ii) allows it to present such documentation on reconsideration since it had previously been presented in the audit response. The USDOL denied the motion for reconsideration. Upon appeal to BALCA, the Board stated that any issue with the employer's program was cleared by the reconsideration. It determined that the US Department of Labor must had overlooked these submittals in the audit response.

Continue reading "PERM Update: In Total System Services Inc., BALCA Overrules CO's Denial of PERM Application on Issue of Adequacy of Notice Re Employee Referral Program" »

In order to recruit and retain the world's top talent in the professional and skilled trades, many businesses offer to sponsor the Green Card petitions of employees whom they wish to retain. Nine times (9) out of ten (10), sponsoring the employment based Green Card of a foreign national means that the US Department of Labor will scrutinize the job, the business and the alien through the PERM process.

Before the Process Starts: Know the Order of Operations for the PERM and Employment Based Green Card Process

Attorney's have a natural inclination to toss around legalistic words and acronyms. Among the usual suspects in the field of immigration law are the often used yet rarely defined terms such as PERM, Labor Certification (Labor Cert or simply LC), Green Card and Permanent Residency. Employers need to know that obtaining a Green Card through the PERM process involves three distinct applications/petitions made to two (2) different federal agencies over the course of one (1) to nine (9) years. Below, I have listed and defined the major road signs along the employment based Green Card journey in order to clarify the process and cut through the legal jargon.

Permanent Residency - This is the intended result and desired outcome of the employment based visa process. Permanent residency is perhaps best understood when compared to the temporary categories of visa (H-1B. L-1. E-2, B-2 and J-1). The major difference is simple, permanent residency allows the alien to live and work permanently, or at the least for a very long time with renewable intervals under good behavior.

All Green Cards come from the same source and give the same rights to the card holder, whether the basis for the green card is an employment based petition, asylum/refugee based petition or marriage/ family based petition. The federal government has decided that after a Green Card petition has been approved, the alien must wait a certain period of time until a green card will be made available to them. All Green Cards, regardless of their basis, are applied for using the I-485 Application Document.

Every category of petition has a different wait time. Within every category of petition, different countries have longer or shorter wait times. Notably, employment based applications from China and India usually have a wait time of five (5) to nine (9) years after they have been approved to file for a Green Card. The Department of State lists and updates the wait times for such Green Card petitions on a monthly basis.

Green Card - This is the official document which states the alien's permanent residency status. It is an ID card, currently pink in color but soon to return to a green hue, that the holder can carry to prove their immigration status. Status as a permanent resident does not disappear if the card is lost or stolen, although the alien should apply for a new card, as with any government issued ID.

Labor Certification - Labor certification is what the Department of Labor gives to the employer, proving that the employer has followed the steps to hire an alien and sponsor their work based permanent for an employment based visa. The Labor Certification is a double sided document printed on special paper with a magnetic strip. It must be applied for by filling out a Labor Certification Application either online or using a paper application. Essentially, with this document, the Department of Labor Certifies that the employer has looked for, but has not found an American worker who is equally as qualified, ready and willing to perform the job needed. With this document in hand, the employer can request permission to apply for a Green Card from the United States Ictizen and Immigration Service (USCIS). The permission is requested through the I-140, Petition for an Immigrant Worker document.

PERM - An acronym for the process that the employer must undergo before a labor certification application can be filed. PERM is short for the almost nonsensical and never used in spoken language, Program Electronic Review Management.

The PERM process requires that the employer first advertise the job opening to American Workers before hiring an Alien. Not just any advertisement will suffice, the regulations mandate a series of newspaper advertisements, postings with state employment offices, physical posting s and usually (3) of ten (10) various additional advertisements. Every advertisement must contain carefully crafted language to pass federal guidelines. Additionally, strict time frames must be followed for every step. It for this reason that the expert guidance of an immigration attorney is highly recommended in navigating the PERM process.

Continue reading "Columbus Immigration Lawyer Discusses the Steps in the Employment Based Green Card Process through PERM" »

This article provids summary of a new decision issued by the Board of Alien Labor Certification Appeals ("BALCA") affirming the denial of an application for PERM Alien Labor Certification.

On June 3, 2010 BALCA issued a decision in which it confirmed to US employers that even small seemingly harmless errors will cause the denial of a PERM application. In this specific case, also known as In Re-Soon Pal Known, case 2010-PER-00056, the employer filed an PERM Alien Labor Certificate Application with the Atlanta Processing Center. The Certifying Officer issued an audit request pursuant to regulations. According to USDOL most recent releases, thirty seven percent (37%) of all PERM applications are subject to such audits. USDOL audits are intended to test, sometimes on a random basis, whether the employer complied with the formalities of pre-filing recruitment activities pursuant to regulations. When the employer provided the documentation responsive to the audit request, it also included proof of recruitment in connection with the application itself.

It is worthy to review the recruitment activities which must precede the filing of a PERM application for a professional position: pursuant to regulations, the employer must engage all of the following recruitment activities prior to filing: 1) advertising the position in a newspaper of general circulation in the geographic area of the worksite; 2) posting a job order with the state workforce agency having jurisdiction over the place intended employment; 3) engaging in three from 10 alternative recruitment steps listed in regulations; and 4) posting an internal notice of the filing of an application for alien labor certification. The regulations under 20 C.F.R. § 656.10(d)(3), require the employer to list specific items in the internal notice including the address of the Certifying Officer which complaints may be sent to by US workers if they have a belief that the employer is engaging into questionable practices in the employment of foreign labor. Hence, the internal notice must include the following precise language:

This notice is being posted in connection with the filing for permanent alien labor certification. Any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor at the following address: Attn: Certifying Officer, Atlanta National Processing Center, Harris Tower, 233 Peachtree Street, N.E., Suite 410, Atlanta, Georgia 30303.

The employer Soon Pal Kwon, complied with all of the above listed recruitment steps, including posting of the internal notice. Furthermore, the employer complied with all regulatory directives relative to the content of the internal posting notice and did in fact list the address of the Certifying Officer in the internal notice. The employer's mistake was that he included one more address on such internal notice. The additional address was for the state workforce agency. Hence when the employer responded to the audit request it provided a copy of the internal notice which had the additional address included therein. The Certifying Officer denied the application on the basis that the internal notice did not comply with the regulatory requirements.

The employer filed an appeal and argued that it had complied with every requirement listed in section 656.10(d)(3) of title 20 Code of Federal Regulations. The employer also stated that inclusion of the additional address is harmless error since the address of the Certifying Officer was listed. The Certifying Officer argued that prior case BALCA case law stated that state workforce agencies may not be used as a conduit to transmit documentation to the Certifying Officer. BALCA decision mirrored the Certifying Officers argument and stated that its prior decision in Hawaii Pacific University have determined: "it is simply unreasonable for petitioning employers to put the burden on the state processing unit to redirect communications about labor certification applications from workers are members of the public when the regulations direct employers to put the proper address on the Notice of Filing in the first instance." In affirming the decision of the Certifying Officer, BALCA relied on the Hawaii Pacific University case concludes that the employer's inclusion of an additional address which had no jurisdiction over the adjudication of the PERM application was "inexcusable."

Continue reading "Cleveland Ohio Immigration Lawyer: BALCA Decision Update: In Re Soon Pal Kwon Denial of PERM Application Upheld Because Employer included SWA Address on Internal Notice" »

Almost all foreign nationals who seek permanent residence, commonly known as a Green Card, through the employment based avenues of permanent immigration must test the local job market via the PERM process. However, for foreign nationals holding a master's degree or a bachelor's plus five years of experience, there is a little utilized waiver of the requirement that the job market be tested by the expensive and time consuming PERM process. For certain highly educated foreign nationals whose area of expertise holds substantial intrinsic merit and the effect of their work would be national in scope, a National Interest Waiver of the PERM process may be available.

Requirements of a National Interest Waiver (NIW) of the PERM Process

The National Interest Waiver has the effect of bypassing the PERM process and placing the potential applicant directly into the I-140 stage of the Green Card process under the EB-2 preference category. While skipping the PERM process is beneficial for all foreign nationals applying for employment based permanent residence, foreign nationals from countries other than China or India will find themselves with a Green Card immediately available upon approval of an I-140 under EB-2. Additionally, foreign nationals from China and India can enjoy the faster processing time of the EB-2 preference category and the peace of mind that the job market does not need to be tested in this economy before they can apply for an employment based Green Card.

Who Qualifies for the National Interest Waiver?

Because of the obvious benefits of the National Interest waiver, the requirements that need to be met are rather stringent. First, the applying foreign national must possess at least a master's degree or its equivalent (Bachelor's plus five (5) years of experience). This educational requirement is the same for all second preference employment based petitions.

Secondly, the foreign national must meets the standards established by the Government that show the foreign national should be allowed to skip the PERM process in the national interest. The controlling case on this issue is the Matter of New York State Department of Transportation 22 I&N Dec. 215. In this case, the court defined three threshold criteria to be met in order to qualify for a National Interest Waiver. A successful argument of all three NIW threshold requirements will establish that the alien is not merely "exceptional" as all EB-2 applicants are, but rather that the aliens skills and achievements "greatly exceed" those of other aliens and similarly educated American workers.

Area of Endeavor Must have Intrinsic Merit: This means that the job that the alien will do must be in a field that has high importance for the national economy or security.

The Proposed Benefit will be National In Scope: This means that the benefits of the foreign national's labor must not be limited to a single geographic area. The effects of the alien's labor must be felt nationally.

The National Interest would be Adversely Affected if the Alien were not Hired: This requirement means that the national interest of allowing the Alien to skip the PERM process and be hired immediately would outweigh the national interest of protecting the jobs of American workers.

As simple as the above requirements seem, it takes a great amount of effort to mount a successful argument that a foreign national deserves to skip the PERM process. Support of the employer is a great importance as well. Common situations that may lead to a successful result include research positions, governmental security positions, complex engineering positions, high ranking business positions and even positions in coaching or music. Every applicant for a NIW must be a step above others with exceptional ability. While there are certain guidelines that can be followed to geach case must be evaluated on its own merits.

Continue reading "Columbus Immigration & Visa Lawyer Discusses a Waiver of PERM Process for purposes of the National Interest" »

The Board of Alien Labor Certification Appeals ("BALCA") in Little Thai Kitchen, II affirmed the Certifying Officer's denial of a PERM application filed for a "Chef" position because the advertisement failed to specify the identity of employer.

In Little Thai Kitchen, II When advertising, the employer, had directed potential US Worker applicants to transmit resumes via facsimile to the attention of the owner "Natarajan." The US Department of Labor's Certifying Officer ("USDOL CO") issued a letter auditing the PERM application. The employer submitted a proof of the advertisement showing the name of the employer missing. The Certifying Officer thereafter denied the application citing the reason that the employer's name was missing from the advertisement. The employer appealed the denial to BALCA.

The employer stated that notwithstanding the assertion by the USDOL CO, the employer's name was listed and that the facsimile number belonged to the employer. Furthermore, the employer argued that it was "harmless error." BALCA rejected the employer's argument stating that a review of the regulatory history of the PERM rules indicate that the employer's name in the advertisement must be shown for the following reasons: (1) to enable potential applicants to better determine whether they wish to apply for the job; (2) to address the possibility that some applicants
would not apply to a blind advertisement; and (3) to assist the CO in matching the
advertisement to the position in question in the event of an audit.

BALCA further reasoned that even though the advertisement had directed applicants to send resumes via facsimile to Mr. Natarajan, it had not stated that he was the President and CEO. There was no way for the USDOL CO to determine whether applicants were deterred from submitting a resume because the advertisement appeared to be a blind. BALCA also stated that it would be burdensome for the USDOL CO to investigate the impact of the absence of the employer's name on the effectiveness of the advertisement for PERM application purposes. For all of the above, BALCA affirmed the denial.

This case emphasizes the experience required to effectively file an approvable PERM application. Approval of a PERM application may very well hinge on a seemingly very minor requirement. In this specific case not only did the employer expend time and effort and resources in filing the initial PERM application, not to mention attorney fees and costs, but also expended a 36 month waiting time between initial processing times, audit review time (which was estimated at 20 months), and eventual appeal only to find out that the entire application was denied because of the employer's failure to adhere to a very simple requirement: including the employer's name in the advertisement.

Continue reading "Columbus, Ohio Immigration Lawyer Provides Update: BALCA Affirms Denial of PERM Application where Ad Did Not Show Employer's Name" »

The H-1b visa program was designed with the intent of attracting some of the world's brightest minds to the United States to work for a temporary period. Many of the world's smartest and most skilled workers are able to utilize this employment based visa and the United States is strengthened by attracting these educated and highly skilled workers. The H-1b visa often times leads to procurement of a Green Card through the PERM processes. If it is true that part of the policy for establishing the H-1B program is to attract the world's smartest and most skilled workers to our country, why then would the Government allow for loopholes in the law that could create a financial penalty for workers who possess a master's degree as opposed to a bachelor's degree?

H-1B Dependency

In an effort to prevent companies from misusing the H-1B program, the Department of Labor and the USCIS has set up a system for discouraging employers from employing an extremely high percentage of H-1b visa holders in relation to the American workers that a company employs. A company that employs a high percentage of H-1b employees may fall into the category of "H-1b dependant."

H-1b dependant employers must make additional attestations on documents filed with the Department of Labor. Specifically, an H-1B dependant employer must swear that the H-1b worker did not displace any American worker for 90 days before and after the H-1b visa is filed. Additionally, an H-1b dependant employer must attest that it has made good faith efforts to recruit American workers to fill positions in its company. Penalties for violating the attestation requirements can be quite severe.

If a company has a high percentage of H-1b workers, and is would be considered H-1b dependant, the company can avoid the attestation requirements listed above by doing one of two things: 1) paying the H-1b employee $60,000 per year or 2) hiring an alien with at least a master's degree.

However, the problem that this rule produces is that an H-1b employer could potentially pay the holder of a master's degree less money than a holder of a bachelor's degree: thereby creating a master's degree penalty. Penalizing persons with higher levels of education makes no logical sense insofar as immigration policy is concerned. However, it is potentially true that companies could attract holders of master's degree for the purpose of paying them less than the employer would have to pay the holder of a bachelor's degree.

Continue reading "Columbus Immigration Lawyer Discusses H-1b Visas, H-1b Dependency Issues & Possible Penalty for Aliens Possessing a Master's Degree." »

The Board of Alien Labor Certification Recently reversed the decision of the US Department of Labor Certifying Officer (CO) on the basis that employer complied with the regulations regarding notice of its employee referral program.

The case is known as Clearstreat Bankings issued by BALCA on March 30, 2010. In this case, the employer had filed a PERM application for labor certification in which it used the employer referral program as one of its alternative recruitment steps.

PERM regulations require the employer to engage in four (4) main recruitment campaigns to show that the permanent employment of the alien in the particular position will not displacing equally qualified US workers. These recruitment campaigns include: 1) Two published ads in a newspaper of general circulation in the area of intended employment; 2) Posting a "job order" at the State Workforce Agency; 3) choosing three from 10 alternative recruitment steps identified in the regulations; and 4) post an internal notice that the employer is about to file an application for alien labor certification. All of these recruitment campaigns must primarily be completed by the employer at least 30 days prior to filing the PERM application.

The alternative recruitment steps mentioned above would require the employer to choose three of the following additional recruitment steps: on campus recruitment, career or job fairs, employer website, radio and television ads, local and ethnic papers, job search website, trade or professional journals, campus placement office, private employer firm, and employee referral program.

In the Clearstreat Banking case, the employer had utilized the employee referral program as one of the three additional recruitment steps. The USDOL Certifying Officer initially issued an Audit Request. The employer provided documentation of its recruitment activities in its audit response including documentation of the employee referral program utilized. The Certifying Officer denied the PERM application on the ground that it failed to comply with the regulations 20 CFR §656.17 in that the memorandum used by the employer in such employee referral program did not have "dated copies of employer notices or memoranda advertising the program and specifying the incentives offered." Id. The problem the Certifying Officer found was that the memorandum which was passed around to the company employees stated that there are incentives in accordance with the company's established referral program but did not specify the incentives. It was on that basis did the Certifying Officer deny the PERM application.

Having first filed an unsuccessful motion for reconsideration with the USDOL Certifying Officer, the employer filed an appeal with BALCA whith which he attached a copy of the company's referral program that had been in place since 1998. BALCA agreed that the employer's employer referral program notice complied with the regulations in that it stated that "an incentive" existed and that it referred the employees to the internal employer referral program which provided specific details relative to such incentives.

Arizona has recently passed one of the harshest anti-immigration bills in America's modern history. While the bill is obviously aimed at those persons who have entered the United States from Mexico without inspection, the effects of this bill will be felt in all immigrant communities. The law gives state and local officers the authority to arrest and detain any person in violation of federal immigration law as well as proscribing punishments for those who aid immigration law violators. Those persons who are present in the United States on valid employment based visas, such as H-1B, L-1 and H-2A, as well as those persons who are eligible or have applied for a Green Card or Legal Permanent Residency through the PERM process or family based petition, now must be extra careful to remain in valid immigration status at all times and above all else always carry their "papers" on them. Just as the tide raises all boats, Arizona's law will affect all immigrants and their employers within that state

On the heels of Arizona's new law, certain Ohio senators have begun the process of drafting copycat legislation. The consequences of such legislation for Ohio business if such legislation were to be passed could be very grave. A bill that damages the confidence of Ohio's vital, skilled and hard working immigrant population in the state's openness and welcome for immigrants in general would do unnecessary harm to Ohio's already recession weakened economy. Before Ohioans jump on the anti-immigration bandwagon, perhaps they should instigate the wording of Arizona's legislation and its potential to harm Ohio's economy.

Ohio should not burden businesses with the requirement to investigate all contractors and subcontractors for services

Arizona's law makes it a crime to knowingly or intentionally employ an unauthorized immigrant. Furthermore, Arizona's law makes it illegal to contract with a person who intentionally or knowingly employs an unauthorized immigrant to perform work for the contacting person. If read literally, Arizona's law would make it a crime to contract with any person or business that has hired an unauthorized worker. As a precaution, businesses would be required to investigate the immigration status of all of their business contact's employees. For the large and medium sized corporations that call Ohio home, such a law would create an unreasonable financial burden and untenable risk of criminal prosecution. There are plenty of other states that would be happy to siphon off the business of Ohio's corporations with the lure of a decreased risk in liability.

Ohio's immigrants make Ohio stronger

Ohio is home to one of the most diverse and most representative cross sections of business, industry, agriculture, research and government as can be found in the United States as a whole. Ohio's many colleges hire the best and brightest people in the world to teach and carry out research. Ohio's businesses rely on skilled workers in engineering and technology to fill positions where not enough American citizens can be found to fill demand. Finally, Ohio's agriculture relies on the labor of H-2A non-immigrants to carry out some of the toughest jobs on the farms and in the fields. Ohio needs to attract immigrants in order to fill vital jobs that make Ohio's economy strong. Why would we want to injure or insult our immigrant population by requiring them to carry "papers" like in some dictatorial third world country? Again, there are plenty of other states and countries that would love to attract skilled and hard working immigrants to carry out the jobs that are vital to the economy.

Continue reading "Columbus Immigration and Visa Attorney Examines the Effects of Potential Immigration Bill on Ohio Business" »

U.S. Senators from the Democratic Party have recently released the first serious outline for eventual Comprehensive Immigration Reform legislation. This plan not only re-writes the rules regarding the attainment of citizenship with regard to those aliens who have entered without inspection, but it also alters the legal landscape for gaining an employment based green card through the PERM process as well as H-1B and L-1 temporary visas. While some of the changes that have been outlined largely appear to bring long needed adjustments to the employment based visa system, there is cause for concern regarding certain aspects of the plan relative to employment based immigration. The American public, petitioning employers as well as highly skilled persons from around the world are left to wonder, does this comprehensive immigration reform plan really do more to attract the world's best and brightest, or does this plan discourage highly skilled people from working in the United States. Is this plan for Comprehensive Immigration reform a wolf in sheep's clothing?

The Effect on Educated Foreign Workers

The central theme of the proposed immigration plan, relative to employment based immigration, is to encourage highly skilled laborers to immigrate permanently, while at the same time discouraging temporary visas for highly skilled persons. This goal is accomplished by simply systematically removing restrictions for obtaining a Green Card for certain highly skilled foreign nationals, while a bevy of crushing restrictions will be imposed on employers hiring temporary workers under the H-1B and L-1 categories. (See page 18. Section A.) Whether it is the unintended or simply unspoken net effect of the proposed policy changes, the number of highly skilled persons approved for employment based immigration will be reduced under this proposed plan in the form that it is written.

First the Good News

This proposed plan for immigration recognizes that the current system of assigning Green Cards for highly skilled workers on a country by country basis has few if any positive policy aspects. Under the new plan, per-country employment based immigration caps will be abolished. In contrast, the current system nonsensically imposes a five year waiting period for obtaining a Green Card on people from India or China who possess a master's degree. Additionally, Employment Based Green Cards for persons from Mexico holding a bachelors degree are currently unavailable at all, while persons with bachelor's degree from any other country in the world could theoretically obtain a Green Card, eventually. Removing the per-country preference for employment based immigration for highly skilled individuals is a welcome and needed change to the current immigration scheme.

Additionally, the proposed plan simplifies the employment process for aliens who hold advanced degrees from American universities and enter the United States with a valid offer of employment from an American employer. This change is intended to remedy the incongruence between America's open pursuit of foreign nationals to study in American Universities, but refusal to allow the same talented people to remain to work and live.
This plan also removes the "non-immigrant intent" requirement to many of the visas that are given to foreign national students. Under the current plan, most student visas require that the student have no immigrant intent when studying in the United States. This requirement is fulfilled by not allowing such students to immediately apply for immigrant visas in most situations. Some visas even require students to return to their country of origin for a period of time before returning to the United States after they have graduated.

Part of the legislative goal of the old policy was to promote American ideas by forcing students to return home and use the knowledge, skills and American experience in their native countries, thereby expanding the American cultural influence to the world. At this point in time, most countries have been exposed to American ideas and ideals and have accepted or rejected the same. Therefore, it is high time that America not snub the very people that America educates here by requiring them to move back home or wait for some ridiculous period before receiving a Green Card. The proposed plan would do much to remedy this outdated policy objective.

... and then the Bad News

The H-1B and L-1 system of temporary visas for skilled workers has come under increased scrutiny for years. Many administrative policy changes have been levied upon these visas categories in order to prevent perceived fraud, abuse and injury to Americans seeking jobs. The proposed plan would now set in stone tougher requirements for obtaining and maintaining such visas through legislation as well as imposing increased penalties on those businesses and employees attempting to obtain an H-1B or L-1 visa without adhering to the law.

Continue reading "A Wolf in Sheep's Clothing? : Columbus Immigration Attorney Discusses Comprehensive Immigration Reform's Effects on the PERM process, Green Cards as well as H-1B and L-1 Visas" »

Since January 1st of 2010, the Department of Labor ("DOL") has overtaken the responsibility of determining the prevailing wage for the Labor Certification Applications used to obtain a Green Card or Legal Permanent Residency ("LPR") in employment based visa petitions. The effect of the government's change to the process intended or not, has been to substantially increase the time needed for before beginning the actual PERM process. Additionally, many institutions, such as colleges and universities, which rely on the official prevailing wage determinations of the government, have seen the same delays applied to their H-1B filing process. At a recent meeting between the Department of Labor and representatives of associations that have a stake in prevailing wage issues, the DOL was asked and answered real questions about the important issues that the government's new policy in this area has created. As a result, the DOL has offered the first glimpse of guidance for successfully completing a prevailing wage determination. In usual governmental fashion some of the answers given have been vague and unsatisfying to those working with these issues on a daily basis. Practitioners and applicants are left to wonder: Is there light at the end of the tunnel, or are these changes to the prevailing wage part of a larger policy of deterring the best and the brightest from moving to America?

Insight to common problems encountered within the Prevailing Wage Application Itself

First and foremost among the problems presented by the Department of Labor's prevailing wage system is the amount of time that it takes from submission of the form, to determination of the result. The delay in process has essentially taken a two (2) day process and created a sixty (60) day ordeal. The effect of this delay has been to severely restrict the start time for beginning the arduous Green Card process. This delay has also had the side effect of injuring large institutions such as colleges and universities that frequently rely on the prevailing wage determination for its 100% accuracy and reliability when filing H-1B applications for professors and other workers.

The department of labor has stated that the delays have been caused by the increased workload and the lack of staffing available to make such determinations. While one would think that the DOL should have anticipated a flood of prevailing wage applications when they centralized this process by wrestling it away from the states, the government claims that it is working diligently to resolve the issue. The DOL hopes to hire more adjudicators in order to take control of this situation and reduce processing time. While the government's acknowledgement that sixty days (60) is too long of a wait time, the admission is little solace to those who have been squeezed for time by this process.
Incomplete Applications and Requests for Clarification

One advantage of filling out a prevailing wage under the iCERT format is that the website warns the applicant when fields on the application are not filled in. Specifically, there are red asterisks next to all vital fields warning the user to fill in the blank. There are also various pop-up warnings and alert signs that remind the user that a field has not been completed in one of the necessary areas of the application. This system of alerts has a distinct advantage over the paper submission format, where any omission would result in a denial.

The DOL has recently explained the process for denying incomplete or ambiguous prevailing wage applications. First, incomplete prevailing wage applications will be denied. The immediate effect of a denied prevailing wage application is that a great deal of further delay will occur. If one is to assume that the error will not be found until the application is processed, and applications are not processed for up to sixty days, than it is easy to see that such a denial could be disastrous.

A more encouraging sign of progress is the DOL's stance on instances where more information could remedy an ambiguous field. The DOL has stated that where the DOL needs more clarification or more information to resolve an issue on the application, the DOL will e-mail the employer or attorney and request such additional information. The recipient of the e-mail will have seven (7) days to respond to such an e-mail request. What is not exactly clear is what constitutes a situation where a request for additional information is warranted, as opposed to a situation where a denial is issued. The best practice, as always is to be meticulous and clear when filling out such forms.

Guidance on some common issues relating to specific fields of the application

Abbreviations for Education Majors - It is common in the real working world for people of many different college majors to qualify for a working position. If one wishes to report all of the majors that are applicable to a certain position on the prevailing wage form, he or she must do so in a very limited amount of characters. If the majors applicable to a position are very wordy, it has been common practice to abbreviate the major in the field to fit all majors that may apply. A college major that is left out could theoretically be used to limit the potential qualified applicants. The DOL has stated that they will accept common abbreviations for college majors and that they have retrained their staff accordingly. One is left to wonder what a "common abbreviation" is. However, the small recognition of the reality of the process is encouraging.

Alternate Education and Experience Requirements - It is also common in the real world for employers to accept different, but equivalent levels of education and experience for a position. In the world of PERM, this is a delicate and intricate balancing act to show. For the sake of this blog, we can assume that a bachelor's degree plus five years of job experience is equivalent to a master's degree plus two years of job experience. The prevailing wage application only allows for one "set" of work and experience in the applicable field. The DOL has stated that a second "set" of education and experience may be placed in the "special skills" section of the application. It must be noted that practitioners should clearly refer the reader to see both fields for the total of the education and experience required.

Using Experience Rather than a Bachelor's Degree - If the applicant does not have a bachelor's degree, but does have a sufficient amount of experience to add up to a bachelor's degree, the common practice has been to state so with specific, legally operative language on the prevailing wage application. The DOL's prevailing wage application does not allow enough room to type the specific language needed. The DOL has addressed this problem by recommending this language be placed in the "special skills" section with a clear reference to and from both applicable fields.

Roving Employees - Where an employee will carry out his or her work in various locations, some of which are not presently known, the DOL has referred practitioners again back to the special skills section of the application to input the necessary information. Essentially, if it in not known where all of the work locations will be, check the box that says "no" to multiple work locations, and clarify the answer in the special skills section. Stating "various locations" or "unknown" may result in delay or denial of the application.

Continue reading "Department of Labor Prevailing Wage Guidance: A Light at the End of the Tunnel for PERM and H-1B Filings?" »

Colleges and Universities have a unique option when applying for the Green Card/Legal Permanent Resident Status of Professors and Teachers through Labor Certification under the PERM process. Many of the additional recruitment steps required by the PERM process for Alien Labor Certification can be avoided by use of what is called "Special Handling." Obtaining a Green Card through the Special handling option is often a desirable alternative to the traditional PERM process used for the majority of professional positions. This option benefits both the College/Universities and the hired Professor as it allows the employer to pick the Professor that they want, while saving the Professor the time that it would have taken to conduct the normal recruitment steps under PERM.

The Theory of Special Handling: Colleges and Universities are in the best position to know which applicant is "more qualified" than the next

The PERM process for applying for a Green Card is based on the theory that employers need to show that there are no ready, willing and available workers to fill a specific job before an employer is allowed to apply for the Green Card of an alien. Wisely, the Federal Government has recognized that Universities and Colleges are different than the normal employer. Specifically, Universities and Colleges have a need to recruit the best and brightest minds in the world to fill teaching positions. Therefore, all that is needed to show on a Labor Certification application filed under the Special Handling option for PERM, is that the selected alien is "more qualified" than the other applicants.

The main points of recruitment under the Special Handling Option

The hiring University of College must show that the selection of the professor was made only after a competitive, nationwide search for qualified applicants. The position must have been advertised in a national professional journal. The College or University must document the recruitment process in detail, keeping meticulous records of the applicants and interview process. It is usually beneficial for the University or College to conduct additional avenues of recruitment including newspaper advertisements and advertisements in journals that are targeted toward a particular category or type of professor. Taking additional recruitment measures will re-enforce to the Federal Government that the recruitment campaign was indeed competitive, resulting in the best person for the job being hired.

Timing Issues and Other Mandatory Steps Under Special Handling

The hiring University of College has 18 months to file the Labor Certification Application (ETA 9089) after the selection of a professor has been made. The employer must also apply for and obtain a prevailing wage determination for the position. Finally, posting notice or notification to the collective bargaining representative needs to be made, stating that the University or College plans to file a Green Card petition on behalf of a professor.

Continue reading "Go to the head of the class: Obtain your Green Card through Special Handling option under the PERM Process" »

Legal Permanent Residency/ Green Card: Tax Issues

Foreign nationals seeking legal permanent residency (LPR Status or a Green Card) through the PERM process, other employment based petitions or through the various family based avenues will inevitably face various tax issues. All foreign nationals applying for such status must abide by certain federal regulations and burdens of proof addressing the tax issue. As the deadline for filing personal income tax returns bears down upon all persons who derive income from the United States, now is an opportune time to discuss some of the common issues that Green Card applicants and Legal Permanent Residents face.

Required Taxation Evidence Submitted with the I-485 application

All Green Card applications require proof of whether or not the alien was taxable in the previous three years. The federal regulations state that the alien must provide proof of whether or not he or she was required to file an income tax return for the past three tax years. Certain visa holders are free from from this requirement when filing an application for adjustment of status. Visa holders that may not need to pay US income tax include J, H-4, H-3 and F visa holders as long as they have received no gross income from within the United States.

Who is to be taxed?

Everyone who derives income from sources within the United States will be taxed. Foreign nationals are either taxed as an alien resident or non-resident alien basis. Resident aliens are taxed on all income that is derived from any source around the world, just like any US citizen would be. Non-resident aliens are only taxed on income that they have gained from sources within the United States.

How do I tell if I will be taxed as a resident or nonresident alien?

The IRS has formulated a test to determine whether or not an alien is a resident alien for tax purposes. This test is called the Green Card Test or the Substantial Presence Test. In most instances, a foreign national who is present in the United States for 183 days out of the year will meet the Green Card test and will be taxed as a United States Citizen would be. A foreign national may also meet the Green Card test and be considered taxable as a United States Citizen if he or she is present in the US for 31 days of the tax year, and has been present in the US for one-third of the days in the previous tax year and one-sixth of the days of the second most recent tax year.

Some days of presence in the United States are not counted toward the Green Card test. Some visa holders are exempt from paying US taxes such as F, J, M and Q visa holders, so usually days spent in the United States on these types of visas are no counted toward the Green Card test. Some visa holders that can be present in the United States for an indefinite period of time are also not liable such as A and G visa holders. Persons who are physically incapable of leaving the US or persons go back and forth to work in the US from Canada and Mexico are usually not taxable in the same manner as nonresidents. Also foreign nationals who are only in the US temporary, using the US as a stopping point while they travel between two locations outside of the US, will not have these days counted in the Green Card test.

Finally, even if the alien meets the Green Card Test, he or she will not be taxed as a US resident if it is shown that the foreign national was not within the US for 183 days in the most recent tax year and that the alien keeps a home in a foreign country, to which country the alien maintains a nearer relationship than he or she has to the United States.

What if I am a dual citizen?

The United States maintains certain tax treaties with other nations. A dual citizen may be able to show non-residency by providing the treaty and citing to the section of the treaty regarding residency. Two specific countries do not address this issue in their treaties with the US; Greece and Pakistan.

Estate Tax Issues for Foreign Nationals who Pass Away in the United States

The rate of estate taxation also depends on whether the alien is considered a resident or nonresident alien. The residency test for estate tax purposes is different that the test for income tax purposes. Specifically, a deceased person is considered a nonresident if that person was neither a citizen nor a resident of the United States. Residency for estate tax purposes is determined based on the persons' domicile (where the person lives daily).

The property owned by a non-resident within the United States is subject to a transfer tax, the same as US citizens. Foreign nationals who are residents are subject to the same estate tax rules that US citizens must meet. For both nonresidents and residents, an unrestricted spouse deduction is available for property that passes to a US citizen spouse. However, if the spouse is not a US citizen, there is no marital deduction unless the property passes to a special type of trust. A marital deduction may be available to non-residents if they are citizens of a country that has a tax treaty with the United States.

Continue reading "Legal Permanent Residency/ Green Card Holder and Non-Immigrant: Tax Issues" »

The first crucial step for acquiring a Green Card through the PERM process is to receive a prevailing wage determination. A prevailing wage determination is essentially the median wage that is paid to workers in a specific job and in a specific geographical area. Federal law regarding the PERM process mandates that an employer applying to sponsor the immigrant petition of a foreign national must promise to pay that person an amount that is greater than or equal to the prevailing wage. In order to file the Labor Certification Application, the employer must have first filed for and received a prevailing wage determination from the government.

Which Agency Determines the Prevailing Wage for Labor Certification Applications?
Prevailing wage determinations are now handled by the Department of Labor through the i-Cert internet submission portal. When first introduced, submission through the i-Cert portal was intended to result in a prevailing wage determination being made within thirty (30) days. This has turned out to be a woefully inaccurate estimate of turnaround time. Prevailing wage determinations though the i-Cert system are now taking forty-five (45) days or longer to receive.

This new turnaround time is in stark contrast to what has historically taken place. Until January of 2010, prevailing wage determinations were given by the states through their respective State Workforce Agencies. When this system was in place, prevailing wage determinations were made within two or three days. As a result of the delay imposed by the new i-Cert system, the beginning of the PERM process can be delayed right from the start.

What is the importance of the prevailing wage in the PERM process?

The prevailing wage must be determined and the validity period must be current in order to successfully file for a Labor Certification. For years the Department of Labor has only required that the prevailing wage be current at the time of filing. However, recent reports have presented cases of the DOL denying a Labor Certification application because a prevailing wage was not made at least thirty (30) days prior to the filing of the application. This is disturbing news and would signal an arbitrary change in the way that the DOL has been deciding these cases.

The prevailing wage is necessary in order to draft the posting notice that is to be placed at the alien's intended location of employment. This posting notice must have the offered wage or a wage range listed on the notice. The wage or range listed must be within the prevailing wage listed by the government. The posting notice requirement requires forty-five (45) calendar days to carry out. All of this takes a toll on the time periods allowed for filing.

Additionally, some states require the wage or wage range to be listed on the thirty (30) day job order. The state job order process can take from sixty (60 to ninety (90) days to complete. Needleless to say, all of these requirements impact the date of filing to a great extent.

What can be Done to Alleviate the Time Pressures caused by the DOL's interference in the Prevailing Wage Process?

Simply put, apply for the prevailing wage early. Applying for the prevailing wage must now be done immediately after determining the requirements for the position. The position requirements must be full and accurate. Once the wage is determined and is utilized by the employer in the recruitment process, it will be very costly and time consuming to re-file. An adverse prevailing wage determination can be appealed, but it is anyone's guess how long that process will take under the auspices of the Department of Labor.

Continue reading "Employment Based Green Card through the PERM Process: Prevailing Wage Determination " »