“HOW TO LOSE A GUY IN 10 DAYS” - PERM
Sheela Murthy (moderator, Murthy Law Firm);
Parastoo Zahedi (Law Office of Parastoo Zahedi); Mary Ryan (Taylor & Ryan);
William L. Carlson, US Dept. of Labor, Office of Foreign Labor Certification;
Miriam Morse, Associate Counsel in the Adjudications Law Division, USCIS OCC
Labor Certification: PERM • Program Electronic Review Management (PERM)
• PERM applications require completion of Form ETA-9089, Application for Permanent Employment Certification, which is filed electronically with the Department of Labor (DOL).
• PERM requires the employer to test the labor market for qualified U.S. workers at a wage that is 100% of the prevailing wage.
• A priority date (the foreign national’s place in line for his/her immigrant visa) is assigned the date when DOL accepts the application.
• Employer recruitment and records can be audited by DOL.
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PERM OVERVIEW
• Program Electronic Review Management System introduced in 2005 • Employer conducts recruitment according to DOL regulations • Test of the U.S. market for a qualified, available and interested U.S. worker at or above
the prevailing wage. • Entry of immigrant into the U.S. must not adversely affect wages and working
conditions of U.S. workers • There must be a bona fide job offer of employment with U.S. employer • Employer reviews resumes and evaluates candidates • If no qualified worker is located who is interested and available, employer files online
labor certification application, ETA-9089.
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THE POSITION OFFERED -What will this person be doing? -Where will this be person be placed? -What kind of qualification must the individual have in order to perform the job duties? i.e., -education, experience, special skills, language -How many vacancies, including the beneficiary, are there?
Detailed Assessment
• Candid assessment with Employer – Explain standard for employer
• No U.S. worker is qualified, ready, willing and able to take up the offered position.
• Minimum objective requirements – Not that the beneficiary is “better”
– Assessment of job market • Employer is the subject matter expert.
– Will the recruitment elicit qualified U.S. w workers?
• Review every resource available to you.
Job Description
• The position offered: – What will this person be doing? – Where will this be person be performing the job duties? – Is the person required to travel? If so, what is the nature of the travel? – Will the person be assigned to sites unknown at the time of hire? – What kind of qualification must the individual have in order to perform
the job duties? i.e., education, experience, special skills, language – How many vacancies, including the beneficiary, are there?
• Job description – 50% of the work done at this stage. – Not a linear process.
Detailed Job Requirements
• How are the actual minimum requirements determined? – BY THE EMPLOYER – HR / Supervisor or Hiring Manager
• Formal job description? – Is the job description current? – Does it actually reflect the minimum requirements or the preferred requirements? – Does is list all required certifications, licensure etc.? Too many?
• Did the beneficiary meet those requirements at the time of hire? – At the time of hire or change of position – 2 years = 24 months, not 23.5 months. – BS degree – 4 years and/or educational evaluation under the EDGE database.
• Does the employer have alternate requirement? – Experience in lieu of degree? – Combination thereof? – Are the alternate requirements are substantially equivalent to the primary requirements?
Variations for stating second-preference requirements
• Master’s degree from an accredited U.S. institution • Master’s degree or foreign degree equivalent • U.S. bachelor’s degree or foreign degree equivalent
followed by at least five years of progressive experience in the specialty [See 8 C.F.R. Section 204.5(k)(4)(i)] • Progressive experience: Employment experience that reveals
progress, moves forward, and advances toward increasingly complex or responsible duties. [See March 20, 2000 Cronin memo]
Variations for stating third-preference skilled worker requirements
• Will accept a combination of degrees or diplomas • Will accept 3 or 4 year degrees • Will accept educational evaluation prepared by a credential evaluation
service • Will accept educational equivalency evaluation prepared by a credential
evaluation service or in accordance with 8 CFR§ 214.2(h)(4)(iii)(D) • Will accept a single degree or any combination of degrees, diplomas or
professional credentials determined to be equivalent by a credential evaluation service
• Will accept a bachelor’s equivalent based on a combination of education and experience
Classifying the Position
• Based on primary requirements • O*Net OnLine
– Occupational Classifications • Summary and detailed report of
– Tasks, Tools, Knowledge, Skills, Abilities etc. • Job Zone / SVP Specific Vocational Preparation
• Are the job duties “normal” for the occupation – Question H.12. – Permissible if due to business necessity
Business Necessity Defined: 20 C.F.R. Section 656.17(h)(1)
• Do the duties and requirements bear a reasonable relationship to the occupation?
• How does the job figure into the employer’s business? • What are the qualifications of other individuals hired for or performing the
job for the employer? • Are the requirements reasonable in the context of the employer’s
business? • Are the requirements essential to perform the job in a reasonable
manner? • Foreign language requirement triggers need to establish business
necessity and will inevitably produce an audit. • Require evidence before recruitment.
Employer - Standard Requirements
• Does the employer require: – Drug testing? – Background check?
• Criminal • Financial
• Licensure/Certifications • Training • Where on the form 9089?
– DOL Guidance
Kellogg Language
• If there are alternate requirements, you must have the Kellogg Language, correct? – Not if the beneficiary is not already employed by the Employer – Not when the requirements are substantially equivalent.
• Review SVP values. • Reminder – DOL and USCIS have different standards for “equivalence”!
– DOL FAQs, Round 10 indicate that Employer is not to include the Kellogg language if they require experience in an alternative occupation but not in “the job offered.” Caution if requirements are structured as alternatives.
• When and How Should Employers Use the Kellogg Language in PERM Applications”, AILA’s Guide to PERM Labor Certification 217(AILA 2011)
Prevailing Wages • Overview of prevailing wages:
• Will alternative wage data work? • How do you seek correction of a prevailing wage
determination that appears incorrect? • What is the best way to ensure that you obtain the
proper and legally correct wage level?
• Obtain a suitable wage before recruitment!
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ALTERNATE WAGE SURVEYS ETA Prevailing Wage Determination Policy Guidance Nonagricultural Immigration Programs, Revised November 2009. (AILA Doc No. 10010468.) (Previously GAL 2-98). Factors: time frames, area, description, sample size, cross-industry, mean/median, methodology
ESTABLISHING ABILITY TO PAY Duration: From priority date until LPR Net income at least equal to the proffered wage Net Current assets at least equal to the proffered wage, or Wages paid
Recruitment for a PERM Case • Mandated recruitment steps under PERM
Notice to employees through “any and all” in-house media Internal posting with salary range Job Order with state workforce agency for 30 days Two Sunday advertisements in the newspaper of general
circulation in area of employment
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Recruitment for a PERM Case • Three additional steps in a PERM recruitment
Internet job search site Company web site Employee referral program Job fairs On-campus recruiting Trade or professional organizations Private employment firms Notice of job opening at campus placement office, if no experience required Appropriate local and ethnic newspapers Radio and television advertisements
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A U.S. Employer’s Consideration of U.S. workers
• Review all resumes received through PERM recruitment – applicants can be disqualified only for job-related reasons. Phone or in-person interviews may be necessary.
• Steps for the employer to take: Review resume and complete an evaluation in writing for each
applicant – detail is key Evaluator must complete education, experience, and
special skills section If applicant meets education and experience requirement, a
phone interview is necessary Employer may lawfully refuse to interview the applicant only if
the resume clearly indicates that the applicant lacks the minimum requirements for the position
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What does your employer client need to know?
If an applicant’s resume presents a reasonable possibility that the applicant may be qualified, the employer must make further inquiries in to his/her qualifications.
Failure to inquire in order to confirm credentials shows
lack of good faith recruitment.
Lack of good faith recruitment is fatal.
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Audits • Audits – 35% of cases?
– May be higher in IT cases.
• Best Practices: compliance file built before filing. – If audited, response should take little time as you
will have all of the evidence necessary in your file.
Audit Trends • Requirement of affidavit regarding no payment of fees by
beneficiary. • Travel/Relocation:
– Distinguishing between travel and relocation requirements "relocation indicates an imminent physical move by the employer to a new area. Such requirement is viewed by the DOL differently from a travel requirement which involves going from place to place for a specified period of time, without the need for a change in a an employee's physical location. Travel indicates applicants will go from place to place as a representative of the employer regardless of the duration of the project. Assignment to various locations throughout the US is not the same as relocation. Relocation occurs when an employee physically moves to a new residence or location to conduct the work or project and is more permanent in nature and an excessive requirement than travel for projects.“ Suggested language: Special requirements – “Must be able to relocate as necessary for long term assignments to project locations in continental U.S.”
• Employee working remotely: – Benefit – include in ads.
Audit Trends Continued
• Licensure not included in beneficiary requirements • Good faith recruitment
– Certified letters not enough • Inadequate documentation/use of Employee Referral Program • Failure to state where Notice of Filing Posted • Failure to list alternative requirements on ETA 9141 • Listed beneficiary’s home office as place of employment; did not
indicate that applicants could work from home. • Engineering degree - no specific field
Completing the Process: • Form I-140, Immigrant Petition
• Employers have no more than 180 calendar days within which to file the I-140 with the approved labor certification application with USCIS; otherwise, labor certification becomes invalid and the process must be commenced anew.
• USCIS requires verification of employer’s ability to pay the wage offered in the labor certification application at the time the labor certification was filed through the date of the filing of the Immigrant Petition (Form I-140).
• Adjustment of status vs. consular processing • Application for adjustment of status may not be filed, and a final consular interview
may not be scheduled, unless foreign national’s priority date is “current,” according to the Department of State’s monthly Visa Bulletin.
• Key considerations: timing, interviews, employment authorization, travel, costs, security clearances, and portability.
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