Articles Posted in PERM

airplane-1445545-m.jpgThis year marks the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of employers who wish to employ these workers permanently in the United States. The Department has not comprehensively examined or modified the PERM requirements and process since its inception in 2004. However, pursuant to President Obama’s Executive Action on Immigration, the U.S. Department of Labor recently announced its plan to review the PERM labor certification program and relevant regulations, in an effort to modernize the program to be more responsive to changes in the national workforce.

As part of its review, the DOL has specifically stated it plans to seek input on the following, with aims of modernizing processes and improving efficiency:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

3d-maze-4-1145534-m.jpgLast month we discussed alternatives to the H-1B visa. One very important reason to consider all options for potential employees revolves around the uncertainties of the H-1B cap process, discussed below.

As the H-1B cap season for FY 2016 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa’s available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced degrees (also known as the Master’s cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past two years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within 10 days of the start of the filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master’s cap will be selected first. Those that qualify for the Master’s cap but were not selected are placed with all other petitions for possible selection in the 65,000 general cap. With over 172,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 3 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. Those not selected may have alternative visas available to them, though many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

igor.jpgWhether or not one thinks the immigration action that President Barack Obama is about to implement is the morally right thing to do, according to groups like the Immigration Policy Center, it is economically expedient. It’s true that the comprehensive immigration reform passed by the Senate last year would have been a great deal better for the economy, and Republicans have said that this executive action is (somehow) causing them to not work on the immigration reform bill. However, that bill was killed in the House last year, and the new Congress coming in next month appears to be even less friendly to the kind of reforms that the President supports. Thus, it seems like the choice is between executive action and no action at all.

The benefits of the reform will stem from two major areas, one being the modernization of the PERM process. (The PERM process is a step that those who would hire employment based immigrants must take in the greater process of hiring a foreign worker). It is a means of making sure immigrants aren’t displacing the U.S. citizen workforce.) As part of the President’s plan, the Department of Labor is working to make it smoother and more responsive to today’s labor needs. On the DOL’s website, it acknowledges that “advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.”

The DOL is planning a few things to combat this. It will address labor shortages, most likely by easing regulations on employers trying to hire in those fields with the biggest shortages (while tightening them in more crowded fields). The Department will do everything it can without additional tax revenue to make these regulations fall more in line with today’s job and labor practices. While these practices may not increase the net amount of visas available, the eventual changes should work toward the goal of admitting those immigrants that will make us (as a whole) as competitive as possible. The department will also look into the possibility of introducing premium processing and overlooking harmless errors on petitions. In addition, the USCIS is considering extending work authorization to H-4 spouses and those who are waiting “in line” for an employment based green card. These kinds of steps are what will keep the U.S. in the lead on innovation, because it will make immigrating here more attractive for innovators and high-potential families overseas.

immigration-rally-2-520993-m.jpgModernizing the PERM Process

There are some problems with the current labor certification process, which is also known the PERM process. PERM (which stands for program electronic review management), is the first step to obtaining employment based permanent residence. It must be approved before an I-140, immigrant petition for alien worker is filed. Its intended function is to be the vehicle in which an American company begins to hire someone who isn’t in this country for a future position that no qualified American worker is now applying for. This creates much uncertainty for the employer and the alien future employee.

The law requires that employment-based immigrants aren’t “taking away” jobs that qualified American workers are seeking, so the employer must place a job advertisement for at least thirty days. This step ensures that the company isn’t hiding the job from American workers–that the process was open and fair. In addition, the company must prove it isn’t trying to hire a foreign national because it thinks it can pay immigrants less than American workers. This procedure (known as the prevailing wage determination) involves the Department of Labor and can alone take several months.

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Depending on your degree, you might meet the educational requirements to file your H-1B petition but when you go to file your PERM application, be denied for not have the required level of education. The important distinction to remember when reviewing the educational requirements for these two types of petitions is that the Department of Labor (DOL) does not use the same standard as the United States Citizenship and Immigration Service’s (USCIS). The DOL has stated that it will treat years of education, work experience and training as interchangeable and that this interchangeability will only work on a one-for-one basis. This is unlike the rule the Three for One Rule that USCIS applies to H-1B adjudications. Under the three for one rule, three years of specialized training and/or work experience is equivalent to one year of college level training. This means that how the term “equivalence” is defined by each adjudicating body will have a significant impact on the analysis of the educational requirements for these two types of petitions.

To meet the educational requirements for an H-1B petition, an employer must show that the foreign national worker meets the educational requirements specified in the regulations. Generally, this means that the foreign national worker must have obtained a Bachelor’s degree or higher from an accredited college or university and that degree must be a requirement to qualify for the specialty occupation. The Three for One Rule makes the analysis of the equivalent of a three year bachelor degree for an H-1B petition much easier. The equivalent of a U.S. bachelor’s degree can be established by showing that the foreign national worker has obtained a three year foreign bachelor’s degree plus additional university level education or work experience.

To meet the PERM academic requirements, the employer must demonstrate that the academic requirements for the offered position are not greater than those defined in the OES Job Zones level and Specific Vocational Preparation (SVP) level for that position. If the educational requirements are above those listed, then the employer is required to provide a business necessity justification for the additional requirements. Applying this standard to the main categories of immigration petitions results in a higher level of proof required than for H-1B petitions.
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The Regulations

Before permanently employing a foreign worker, employers must certify that there are no U.S. workers available for the position by performing specified recruitment steps in order to receive a labor certification. The employer bears the burden of proving that it conducted the mandatory recruitment steps as a good faith effort to confirm that there are no US workers available before hiring a foreign worker. There are three mandatory recruitment steps that every employer must follow. First, the employer must post the job with a state workforce office for 30 days. Second, the employer must post an internal notice of the employer’s intent to hire a foreign worker. Third, the employer must post the job announcement in a Sunday newspaper that is in general circulation in the area of proposed employment for two weeks. If the position that the employer seeks to fill is “professional,” then the employer must choose an additional three of the ten recruitment steps listed in 20 C.F.R. § 656.17(e)(1)(ii)(A)-(J). One of the options is to post the position announcement on the employer’s website. Another option is to post the job opportunity through a job search website other than the employer’s website. As evidence of these options, the employer usually must provide dated printouts of the webpages showing the job advertisement, but other evidence, such as affidavits, may be acceptable. It is the employer’s duty to prove that all of the regulatory labor certification requirements have been satisfied before the labor certification may be granted.

In a decision of Board of Alien Labor Certification Appeals case, issued on December 30, 2013, the Administrative Law Judge (“ALJ”) affirmed a denial of a labor certification because the employer in that case failed to meet the regulatory recruitment requirements. (In the Matter of The Dallas Morning News, L.P., BALCA Case No.: 2011-PER-02302, December 30, 2013)

Background

In that case, the Certifying Officer (“CO”) denied the labor certification in the grounds that the employer did not satisfy the three additional recruitment steps required for a professional position. Two of the three recruitment steps that the employer elected to perform were to post the job opening on the employer’s website and to post the job announcement on an external job search website. The employer posted the job opening to Yahoo’s HotJobs, which is an online career management website containing job listings. In addition, at the bottom of the homepage of the employer’s website, a “careers” hyperlink redirected job seekers to the employer’s profile and job listings on Yahoo’s HotJobs’ website. The CO denied the labor certification based on a finding that the employer did not adequately document that it posted the job opening to its website.
Upon filing a request for reconsideration, the employer submitted an affidavit attesting that the employer entered into a contract with HotJobs whereby the career section of the employer’s website was linked to HotJobs’s website. Therefore, if a potential job seeker clicked on the “careers” tab on the employer’s website, it would redirect that job seeker out of the employer’s website and to the employer’s profile and job openings listed on HotJobs.
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calendar.jpgIn 2013, we saw some interesting changes in processing times, from rapid progressions in some visa categories to retrogression in others. Using the latest Visa Bulletin for January 2014 along with the predictions made by Charles Oppenheim of the Visa Office, our team has come up with some of our own predictions for processing times for the upcoming year. Here is a highlight of the Visa Bulletin predictions for 2014:

The Good

  • It is possible that the cut-off dates for India EB-2 visas will return to pre-retrogression dates (circa December 2008) in August or September of 2014.
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    Since the June 2013 Visa Bulletin was released, the priority date cut-off for Chinese nationals filing under the EB-3 immigrant visa category has been more recent than the priority date cut-off for the EB-2 visa category. In fact, the cut-off date for EB-3 visas for Chinese nationals has progressed nearly four years since June 2013, from September 1, 2008 to April 1, 2012, thanks in large part to a dramatic 18 month jump between August and September of 2013. Contrastingly, cut-off dates for the EB-2 category have lingered around the second half of 2008, progressing only five months, to December 8, 2008, between June 2013 and January 2014. In October 2013, Charles Oppenheim of the Visa Office predicted that the cut-off dates for EB-3 visas for Chinese nationals will likely continue to progress more rapidly than the EB-2 visa category.

    With this in mind, employers who have already petitioned for Chinese nationals under EB-2 or those who are planning to file for an employment-based immigrant visa in the near future should consider alternative options that could accelerate their path the permanent residence. For instance, employers who have petitioned for Chinese nationals and have a pending or approved EB-2 immigrant petition may subsequently file under the EB-3 category for the same beneficiary (“downgrade”). Employers who seek to file a new Form I-140, Immigrant Petition for an Alien Worker from China may also concurrently file under both EB-2 and EB-3 visa categories.

    This is possible because the federal regulation at 8 CFR §204.5(e) indicates that when a beneficiary has more than one approved petition, either because of concurrent EB-2/EB-3 filing or because of subsequent “upgrading” from EB-3 to EB-2, the beneficiary’s priority date is the earliest priority date assigned. Similarly, though less common, if a petitioner originally files under EB-2 and subsequently files under EB-3, the beneficiary will be assigned the earlier priority date.

    eraser-428206-m.jpgIn many areas of law, attorneys have the benefit of a legal doctrine that allows for a minor clerical error in certain legal documents if the error is determined to be minimis and immaterial to the substance of the matter. However, certain areas of immigration law do not allow for this doctrine, especially when it comes to permanent labor certification (PERM) applications. Although there are past examples of PERM application errors being excused, in recent years, the US Department of Labor and the Code of Federal Regulations have been cracking down on employers who make even the tiniest errors on their PERM applications.

    There is a recent BALCA case that is directly on point. In the Matter of Apt-Advanced Polymer Technology, decided September 13, 2013, is a case where the employer’s PERM application form ETA 9089 contained an error in one of the boxes, specifically box “I.d.” The application incorrectly stated that the employer used three separate recruitment advertising methods: the company’s employee referral program, a job search website, and the employer’s own website. After an audit initiated by the US Department of Labor, the Certifying Officer denied the application.
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    freedom-2-889854-m.jpgThere are several government agencies affected by the current government shutdown. Presently, there are several ways that your H-1B petition, PERM application, or other employment-based process may be affected. This is having a significant impact in several areas. Here is what we have learned so far.

    US Department of Labor: H-1B, PERM, E Visa, etc.

    The US Department of Labor (DOL) is one of the affected agencies, which is significantly involved in H-1B processing and PERM. The DOL office of foreign labor certification (OFLC) is not one of those agencies excepted from shutting down, and its employees have been furloughed. The shutdown of the OFLC has resulted in a halt in case processing of labor condition applications (LCAs), audit responses, prevailing wage applications, and permanent and temporary employment certification applications. Updates to the official DOL website have stopped as well. This means that if your H-1B petition is not yet ready to file with the USCIS because it is still being processed by the DOL, your case may not be processed until after the government shutdown has ended. That is unless the USCIS agrees to accept these cases, as it did during last year’s shutdown.
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