BALCA'S NEW DECISION IN DENZIL GUNNELS OPENS THE DOOR TO SUBMIT MORE EVIDENCE FOLLOWING A LABOR CERTIFICATION DENIAL

By Cyrus D. Mehta

The Board of Alien Labor Certification Appeals (BALCA) has been extremely active recently issuing several important decisions. Since the PERM labor certification process is so exacting and unforgiving, there is very little opportunity for an employer to correct the record in the event of a mistake, or to supplement the record if the Department of Labor (DOL) objects to some aspect of the PERM application and issues a denial. BALCA recently issued an important decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010), that may provide more opportunities for the employer to provide supplemental evidence following a denial. Indeed, BALCA has made itself relevant again by cutting down on processing times and issuing more decisions. This post is based on a larger article analyzing selected BALCA decisions that will be part of the 13th Annual AILA New York Chapter Immigration Law Symposium on December 1, 2010

As a background, over three years ago BALCA issued HealthAmerica, 2006-PER-0001 (BALCA July 18, 2006), a seminal decision, which rejected the certifying officer’s (CO) denial of the labor certification based on a typographical error recording a Sunday advertisement on the form, although the employer possessed actual tear sheets of the advertisement. BALCA rejected the CO’s position that no new evidence could be submitted as the advertisement tear sheets were part of the PERM compliance recordkeeping requirement and thus was constructively submitted by the employer.

However, not every mistake can be overcome by invoking HealthAmerica, especially mistakes that are clearly in violation of the regulations. It should also be noted that the beneficial impact of HealthAmerica has been somewhat negated by 20 CFR §656.24(g)(2)(ii), which limits documents accompanying a motion for reconsideration to “[d]ocumentation that the employer did not have an opportunity to present previously to the certifying officer, but that existed at the time the application for permanent labor certification was filed, and was maintained by the employer to support the application for permanent labor certification in compliance with the requirements of §656.10(f).” Still, we see BALCA continuing to rule in favor of applicants who have made errors based on fundamental fairness and in recognition of the fact that the PERM process is an exacting an unforgiving one. Indeed, even in Federal Insurance Co., 2008-PER-00037 (BALCA Feb. 20, 2009), which involved a failure to state the magic language that an employer will accept any suitable combination of experience, training or education on the form, BALCA’s decision was grounded in the fundamental fairness doctrine enunciated in HealthAmerica, especially since there was no place on the ETA-9089 that signaled to an employer to insert this language. However, as noted below, the trend is for BALCA to be far less forgiving and to apply HealthAmerica very narrowly.

BALCA’s most recent decision, Denzil Gunnels, 2010-PER-00628 (BALCA Nov. 16, 2010) sets forth standards under which the CO must consider an appeal as a request to reconsider rather than treat is as a request for review. 20 CFR 656.24(g)(4) provides that “[t]he Certifying Officer, may, in his or her discretion, reconsider the determination or treat it as a request for review.” In Denzil Gunnels BALCA found that the CO abused his discretion by failing to consider the employer’s request as a motion, and instead, treating it as a request for review. Even though the employer filed a “Request for Review of Denial of Form ETA 9089,” it was attempting to submit supplementary evidence, a corrected ETA 9089, after the originally filed ETA 9089 failed to state “yes” or “no” in Section M1. The employer was thus attempting to request a motion for reconsideration, even though it did not say so clearly, and BALCA admonished the DOL indicating that its FAQs did not make clear that if the employer omits the magic word “reconsideration,” it will result in the request being placed in the BALCA queue. Note that if the CO sends the file to BALCA, an employer is unable to correct or supplement the record under HealthAmerica as BALCA is unable to consider new evidence.

BALCA in Denzil Gunnels concluded by setting forth circumstances under which the CO may exercise his discretion properly and the circumstances under which it will be found to be an abuse of discretion:

Step 1. Where an employer unambiguously requests BALCA review, the employer has made a tactical decision to appeal to BALCA and can no longer supplement the record. BALCA, however, left open the possibility that even where an employer uses the words “request for review,” but it is clear that the employer is seeking consideration or where there is ambiguity, BALCA will determine whether the CO abused his discretion by sending the file into the BALCA queue without first treating it as a request for reconsideration and reviewing the supplemental evidence.

Step 2. BALCA recognized that not all supplemental evidence can be accepted, and could be barred under 20 CFR §656.24(g)(2)(ii) where the employer did have a prior opportunity to submit evidence to the CO during an audit. This would be a case, labeled as Situation 1, where “Application is Filed - Audit - Audit Response - Final Determination - Reconsideration based on evidence submitted in audit response." Under Situation 1, BALCA will not find that the CO abused his discretion as the supplemental evidence was squarely barred under § 656.24(g)(2)(ii), and the CO was justified in treating the request for reconsideration as an appeal to BALCA. On the other hand, under Situation 2, "Application is Filed - Denial of Application - Reconsideration based on evidence that would have been submitted as part of the audit response," if a PERM application is denied without an audit, and the employer submits supplemental evidence that could be considered as part of the record under HealthAmerica, the CO should treat it as a request for reconsideration rather than a request for review. See also CVS RX Services, Inc., 2010-PER-01108 (BALCA Nov. 16, 2010) (CO abused his discretion by referring file to BALCA when employer submitted supplemental evidence, after denial without audit, justifying that a professional journal was appropriate even though the position required a bachelor’s degree with no experience).

Step 3. BALCA further recognized that even in cases that fall squarely under Situation 1, the circumstances of an audit may not have been specific enough to put the employer on notice regarding a specific deficiency. Thus, these cases would be treated under Situation 2, even if an employer received an audit, but argues that it did not receive specific notice, the request for review should be treated as a request for reconsideration so that the employer has a fair opportunity to present supplemental evidence to the CO.

Denzil Gunnels, thus, opens the door for an employer to argue that it may not have received adequate notice of the deficiency and appears to provide a way around a strict application of the prohibition to present supplementary evidence that would otherwise be barred by 20 CFR §656.24(g)(2)(ii). Thus, as an example, in its denial CO objected to whether a Sunday newspaper was appropriate or whether a specific US worker was lawfully rejected or not, one can argue that the generic boilerplate audit notice, even if it asked for evidence of the employer’s recruitment, did not adequately apprise the employer of these potential deficiencies, and can seek to supplement the record through a motion to reconsider. On the other hand, if an employer inadvertently submits an erroneous copy of an advertisement in response to an audit notification for evidence of recruitment, BALCA has held that this situation is the precise type of evidence barred by § 656.24(g). SeeTechdemocracy LLC, 2009-PER-00459, 2011-PER-00058 (BALCA Nov. 16, 2010).

THE SPIRIT IS AT THE AIRPORT, BUT THE FLESH IS IN THE UNITED STATES: UNDERSTANDING PAROLE

By David A. Isaacson

One immigration concept which sometimes gives rise to confusion is that of “parole”. The most common use of parole at present is to allow in, pursuant to an “advance parole” authorization, aliens who have a pending application for adjustment of status under INA § 245 or certain other relief. Perhaps because of how routine it is for an applicant for adjustment of status to seek and utilize advance parole (although it can be extremely dangerous for applicants with previous unlawful presence in the United States), it is easy to forget how unusual parole really is, as a matter of what one might call immigration metaphysics.

Section § 212(d)(5)(A), which provides the authority to parole aliens into the United States temporarily, specifies that parole “shall not be regarded as an admission of the alien” and that after the purposes of a parole have been served “the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant to the United States.” According to INA §101(a)(13)(B), as well, “[a]n alien who is paroled under section 212(d)(5) . . . shall not be considered to have been admitted.” Parole can be considered a “lawful immigration status” in some contexts, such as the list in 8 C.F.R. § 245.1(d)(1)(v) of how one may maintain status for adjustment purposes, but it is not an admission. The question arises, if an alien who is paroled into the United States shall not be considered to have been admitted, what should we consider has happened to him?

The Supreme Court has previously described an alien granted parole as “in theory of law at the boundary line” and not “legally ‘within the United States’”. Leng May Ma v. Barber, 357 U.S. 185, 189-190 (1958); Kaplan v. Tod, 267 U.S. 228, 230 (1925). In Leng May Ma, the Supreme Court denied an alien the opportunity to apply for what was then called withholding of deportation (the predecessor of what is now withholding of removal under INA § 241(b)(3)), on the theory that the statutory provision applying to aliens “within the United States” who would face persecution if returned to their home countries did not apply to a parolee.

To make the issue somewhat more understandable to nonlawyers, the author of this posting sometimes explains to clients that in effect their spirit has remained at the airport, and only their body has been allowed into the United States. They may think that they have been allowed into the United States, but actually they have only been allowed to physically wander around the country while DHS decides whether they should in fact be let in.

Appreciating the nature of parole can provide useful insight into otherwise-mysterious immigration phenomena. One which has been obscure to some is the policy announced in a 2000 memorandum of INS Acting Associate Commissioner Cronin, under which certain aliens formerly in H-1B status who re-enter the United States pursuant to a grant of advance parole rather than on their H-1B visa can seek and be granted extensions of stay as H-1B nonimmigrants. Being able to “extend” H-1B status would seem to imply that one had that status in the first place, and some have understood the Cronin memorandum to imply a sort of latent or inchoate H-1B status for parolees with an extant valid H-1B petition on their behalf. But this author believes that a Cronin memorandum “extension” is better understood as delayed admission of the paroled alien into the United States in H-1B status. As the Cronin memorandum puts it, “If the Service approves the alien’s application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.”

If a paroled alien is considered, as a matter of law, still to be waiting at the airport during the period of the parole, then DHS can decide to admit her in H-1B status as a new arrival would be admitted in H-1B status. Just as an alien who has entered on advance parole is often subsequently admitted as a lawful permanent resident by the grant of her adjustment application – analogous to an immigrant who is admitted as an LPR following consular processing of an immigrant visa, except that no actual visa is required – an alien on advance parole can under the Cronin memorandum be admitted as an H-1B nonimmigrant instead.

One interesting implication of this view is that it suggests that unauthorized employment or other violations of the terms of H-1B employment by a paroled alien prior to an application for a Cronin memo “extension” should be disregarded by USCIS. Ordinarily, an admitted alien seeking an extension of stay must demonstrate continuity of status and a lack of status violation, although USCIS does have the authority to excuse a gap in status pursuant to 8 CFR 214.1(c)(4) if “[t]he alien has not otherwise violated his or her nonimmigrant status,” 8 CFR 214.1(c)(4)(ii). But there is no requirement as a matter of statute or regulation that an alien seeking admission as a nonimmigrant have previously maintained status, at least so long as the alien has not accumulated 180 days of unlawful presence as that term is defined in INA § 212(a)(9)(B) (which does not include many status violations). This is why it is sometimes possible for an alien with a valid nonimmigrant visa to resolve a prior status violation simply by exiting the United States, and being readmitted on that visa. Therefore, if we understand a Cronin memorandum “extension” as an admission of an alien whose spirit had remained at the airport, this admission can take place regardless of how the alien may or may not have been employed during the period of parole, for prior failure to maintain status or unauthorized employment would not bar admission as a nonimmigrant. On this analysis, the only difference between an alien who takes a trip outside the United States in order to return on a valid visa, and an alien who obtains a Cronin memorandum “extension”, would be that the latter did not need to leave the country because as a matter of law he or she was never truly here in the first place!

This analysis of the Cronin memorandum process could be useful in the context of an alien seeking adjustment of status under INA § 245(k), which forgives certain employment-based immigrants for periods of unauthorized employment or time out of status totaling less than 180 days. USCIS has asserted, in a July 14, 2008 memorandum from Acting Associate Director Donald Neufeld, that unauthorized employment continues to accrue for these purposes even after the filing of an adjustment application. But in the § 245(k) context, as the Neufeld memorandum acknowledges, the total amount of time under the 180-day clock is measured from the alien’s most recent admission. Since parole is not an admission according to INA § 212(d)(5)(A) and § 101(a)(13)(B) (and according to the Neufeld memorandum), but it appears that an “extension” under the Cronin memorandum is an admission, an alien subject to the Cronin memorandum who has entered on advance parole should be able to reset his or her § 245(k) clock to zero simply by obtaining admission as an H-1B nonimmigrant via a Cronin memo “extension”. The prior time on the § 245(k) clock should then be wiped out just as it would had the alien left the United States and been readmitted as an H-1B nonimmigrant.

The here-but-not-here nature of parole as explained in Leng May Ma and its predecessors has other interesting implications, as well. Strictly speaking, although the author knows of no case in which this argument has been made, Leng May Ma implies that parolees whose parole expires or is revoked cannot then become inadmissible under INA § 212(a)(9) for unlawful presence accrued between that time and their subsequent departure from the United States—because as a matter of law, they were never here! It is difficult to see how an alien can be unlawfully present if he or she is not present.

Some provisions of the INA, such as that in INA § 240A(b)(1)(A) authorizing cancellation of removal for certain nonpermanent residents, refer to an alien who “has been physically present” in the United States for a particular amount of time, which would include a paroled alien whose body is physically within the United States even if as a matter of law the alien is not really here. However, INA § 212(a)(9)(B) does not include such a reference. Although Congress apparently knew how to differentiate between mere physical presence and full-fledged legal presence, in INA § 212(a)(9)(B) they referred to an alien who is “unlawfully present in the United States,” defined further in § 212(a)(9)(B)(ii) as one who “is present in the United States after the period of stay authorized by the Attorney General or is present in the United States without being admitted or paroled.” The even-harsher so-called “permanent bar” provision at INA § 212(a)(9)(C)(i), regarding aliens who enter without inspection after previous unlawful presence, similarly refers to one who is “unlawfully present”. The statute could have referred to one “unlawfully physically present in the United States” or “physically present in the United States after the period of stay authorized by the Attorney General”, but it did not. Thus, the argument can be made that a parolee whose parole has expired or been revoked should not be deemed unlawfully present for purposes of § 212(a)(9)(B)-(C), because under Leng May Ma and Kaplan he or she has never truly come into the United States at all.

DON'T GET TOO COMFORTABLE: STATUS AFTER THE GRANT OF AN H-1B EXTENSION UNDER AC 21

By Gary Endelman and Cyrus D. Mehta

The American Competitiveness in the 21st Century Act (AC 21) has been a great benefit for those whose applications for permanent residency cannot be completed before the sixth year in H-1B status. Under Section 106(a) of AC 21, an individual is able to extend H-1B status beyond six years if, inter alia, a labor certification was filed 365 days prior to the end of the 6th year. In companion Section 104 (c) of AC 21, the H-1B status may be extended for three years at a time if one is a beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for the backlogs in the employment-based first (EB-1), second (EB-2) or third preferences (EB-3).

AC 21 is therefore a generous ameliorative measure against delays in processing of permanent residency application, or even if there are no processing delays, against delays caused by backlogs in the EB preferences. For example, a beneficiary of an I-140 petition in the EB-3 for India may well have to wait for the green card for over a decade, and AC 21 allows the H-1B status to be extended long after the six year limitation has ended, thus allowing the intending immigrant to work in the US and remain in status.

This benefit to extend H-1B status comes to an end if one of the applications that served as the basis for the extension – the underlying labor certification, I-140 petition or adjustments of status application - gets denied. The authors will argue that once the H-1B status is extended under AC 21, it cannot be switched off if there is a denial of the underlying application or petition during either the one year or three year extension period. Such a denial, on the other hand, should only preclude a further H-1B extension under AC 21.

We give great credit to immigration scholar and guru, Naomi Schorr, for bringing to our attention in her recent article, It Makes You Want To Scream: Who Knows? 15 Bender’s Immigr. Bull. 1387 (Oct. 15, 2010), that there is ambiguity in a not so clearly written USCIS memorandum that seems to suggest that the H-1B status may no longer be valid after the denial of the underlying application or petition. In a Memorandum from William R. Yates on a number of AC 21 issues dated May 12, 2005, http://bit.ly/aMjERW, one section indicates that the H-1B extension under AC 21 could be applied during the remainder of the sixth year for whatever time was left for that year plus the additional extra year under AC 21. Question 3 is worth repeating:

Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?

Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

We agree with Ms. Schorr that we cannot precisely understand what this question and answer actually means. It could mean, as Ms. Schorr suggests, a situation “where a petition for a sixth year has been approved, but the underlying basis for the extension is denied before the end of the six years? Or, does it reach someone who’s already in an extended period of H-1B status and act to immediately, by operation of law, put an end to that status? If so, it’s certainly a trap for the unwary.”

The authors offer an alternative reading of this question and answer. We note that the Yates Memorandum talks about the extension rather than the revocation of status. It could mean that the USCIS may deny the H-1B after the filing but before it is adjudicated during the sixth year. For example, an H-1B extension is filed requesting an additional three months remaining in the sixth year (based on 3 months of time spent abroad that can be recaptured towards the sixth H-1B year) and an additional 7th year under AC 21. If at the time of adjudication, the USCIS examiner finds that the underlying labor certification has been denied, the extension request can still be granted for an additional 3 months, which is the remainder of the sixth year, but not for the 7th year. Once the USCIS has allowed the H-1B temporary worker to cross the 6th year Rubicon, that decision remains intact even if the labor certification or I-140 immigrant petition later go down in flames. Denial of any of these applications does not mean that the 7th year extension was improvidently granted nor is it a reason to revisit it.

Our reading suggests that once the H-1B extension is approved, it cannot terminate by operation of law based on a denial of the underlying application. Such a radical interpretation, if at all the government meant it that way in the Yates Memorandum, contravenes the plain language of the AC 21 statute and also defies logic with respect to prior USCIS polices regarding how it treats status violations. Section 106(b) of AC 21 states that "[t]he Attorney General shall extend the stay of an alien who qualifies for an exemption under section (a) in one-year increments until such time as a final decision is made” This can be clearly read as allowing H-1B extensions so long as there is no final decision at the time of filing the extension but not after the extension has been granted. Indeed, a later USCIS Memorandum dated May 30, 2008 further interpreting AC 21 by Donald Neufeld, http://bit.ly/c5YV4j, further supports our position. Mr. Neufeld instructs USCIS adjudicators that the State Department visa bulletin regarding whether the priority date is current or not should be checked at the time of filing the H-1B extension. This suggests that if during the three year H-1B extension period, the priority date does become current, the H-1B status continues and will not terminate.

This reading is further supported by the fact that if the Yates Memorandum is construed broadly, the alien would go out of status as soon as the underlying application is denied, even though the alien has the right to continue to pursue it further on appeal within a few days or weeks. If the labor certification gets denied, the H-1B status will extinguish, but then it ought to get revived when an appeal to the Board of Alien Labor Certification Appeals BALCA) is filed within 30 days. If BALCA affirms the denial of the labor certification, the H-1B status will again get extinguished, but the employer has 6 years to seek review in federal court under Chapter 7 of the Administrative Procedures Act and continue to pursue the labor certification beyond the BALCA denial. If an APA action is taken prior to the filing of the next extension request, the H-1B status ought to get revived again.

Under different circumstances, however, H-1B status and any other nonimmigrant status cannot be switched on and off like a light bulb. We wish this were the case, but it is not so. Once an alien falls out of status, say by failing to work for a few months, H-1B status does not get revived when the alien reports back to work. The right way to rectify status is to leave the US and reenter or file a new extension and ask that the status violation be excused under 8 CFR §214.1(c)(4).

Similarly, with respect to three year H-1B extensions under AC 21 § 104(c), the alien "may apply for [the extension] and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon." If the Yates Memorandum also applies to a § 104(c) extension, which the plain reading of the text suggests may not be the case, and if the adjustment of status application is denied, under a literal reading of the Yates memo, the H-1B status comes to an end within the 3 year period. But, pause and take a deep breath. If USCIS denies the AOS, the application may be renewed in a removal proceeding pursuant to 8 CFR § 245.2(a)(5)(ii). And at the time of the renewal of the AOS before the Immigration Judge, the same regulation provides that an applicant does not have to meet the statutory requirements of § 245(c) again so long as she or he met them at the time the renewed application was initially filed. This event, the placing of the alien in removal proceeding, ought to again "turn on" the H-1B status, which if it does, would also be an instant ground to terminate removal proceedings as the alien is in status and should not be removed. Thus, the very act of placing the alien in removal proceedings would automatically give grounds to terminate the removal proceeding. How logical (or illogical) will that be from a policy perspective?

Also, neither the employer nor the H-1B worker may know about the termination of status. It is possible for an H-1B extension under AC 21 to occur with a new employer based on the prior employer’s labor certification or I-140 petition, See On The Edge Of The Precipice – Being Laid Off During The 7th year H-1B, http://bit.ly/cqmC16. If the prior employer yanks the I-140 petition during the three year extension period, and the H-1B is no longer in status, what does this portend for the new employer’s obligation under the Form I-9, Employment Eligibility Verification? What if the H-1B beneficiary files for adjustment of status unwittingly not knowing that his or her H-1B status switched off some time ago and is now not found to be eligible for the benefit?

Clearly, the termination of H-1B status could not have been intended by Congress when it enacted AC 21, otherwise the Congress would have been more explicit about it. Therefore, a sensible reading of both § 106(a) and § 104(c) ought to support the argument that once the AC 21 extension is granted, the H-1B beneficiary is home free until it is time to again request a further extension. Still, as our teacher Naomi Schorr rightly reminds us, there is not much in immigration law these days that is safe from challenge. So, no matter how confident we are that our views on AC 21 make sense, the authors feel it prudent to pay homage to the sage counsel of baseball immortal Satchel Paige: “ Don't look back. Something might be gaining on you.”

PERM AND THE ROVING EMPLOYEE

by Cora-Ann Pestaina

Practitioner to Employer Client: We can certainly assist you in the filing of a PERM application for your employee. Where will the employee be working?

Employer Client: Well, he will work out of his home in New Jersey and additionally at three different client sites in Pennsylvania, New York and Connecticut.

Practitioner: *silent groan* This will require some special attention.

Filing a labor certification for a roving employee is akin to navigating a minefield. One tiny “mistake” and BOOM! It doesn’t matter that there is precious little guidance from the DOL to begin with. The DOL will happily issue you that denial listing in nice, bold print the various “obvious” reasons why you did not draft the advertisement correctly, recruit correctly or use the proper prevailing wage, etc.

A lot of what we now know about filing a labor certification for a roving employee has been learned through trial and error. The above scenario is merely one type of roving employee. The most common type of roving employee is the IT consultant who will not work at the employer’s headquarters but instead will be assigned to one or more known or unanticipated client sites. As described in the scenario above, a roving employee could also work from home and visit various client sites confined to one region or spread throughout the US. The issues surrounding roving employees include ensuring that the advertisements contain all the required language and choosing the location out of which to base the recruitment and the prevailing wage determination and deciding where to post the Notice of Filing.

In the ordinary course, a labor certification is filed in the area of intended employment. The Department of Labor's regulations require an employer to prove through a test of the labor market that there are not sufficient workers in the US who are able, willing, qualified, and available at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. In the case of the roving employee, where the area of intended employment is presently unknown or subject to constant change, it becomes difficult to determine the location where the labor certification should be filed and thus where the recruitment should be performed and the prevailing wage obtained. The statute or the regulations are both silent on this issue. As indicated in a paper analyzing recent BALCA decisions by Cyrus D. Mehta for the AILA New York Immigration Symposium on December 1, 2010, the most recent guidance comes from a decision by the Board of Alien Labor Certification Appeals (BALCA) in Amsol, Inc., 2008-INA-00112. In Amsol, the employer filed several labor certifications listing its address as Casper, Wyoming and the address where the aliens would work as “Casper, WY and any other unanticipated location in the US.” The employer argued, and BALCA agreed, that the employer should be governed by the Employment and Training Administration’s Field Memorandum No. 48-94 (May 16, 1994) § 10, which provided that "[a]pplications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located." In Amsol, BALCA referenced Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007) and pointed out that the mere business presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location. In Paradigm the employer’s office in Erie, PA was not the appropriate location for a labor market test where the offered position involved unanticipated locations because the prevailing wage in Erie, PA was lower than the prevailing wage at the employer’s headquarters in Columbia, MD. Accordingly, at least in the most common case of the roving employee, where a job will involve various unanticipated work sites, the employer’s headquarters is accepted as the appropriate location for filing the labor certification. Following that, it is also therefore acceptable to obtain the prevailing wage determination from that location and to post the Notice of Filing at the employer’s headquarters. In Amsol, it was also important that the employer advertised in a national magazine, demonstrating that the employer did not choose Casper, WY in an attempt to test the market least likely to provide qualified US workers.

The less common issue of the home office has not yet been the subject of a BALCA decision. What should the employer do when the employee works from home in a location that is different from the employer’s headquarters? Thus far, the only DOL guidance can be found in the minutes of a March 15, 2007 DOL Stakeholders meeting which can be found at AILA Doc. No. 07041264. On the subject of the home office, the minutes read as follows:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer's headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer's headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee's region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company's headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite.

AILA note: This issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

The DOL’s response to the Stakeholders’ query indicates that the choice is left to the employer. If the employer lists the worksite as the employee’s home then the employer can perform recruitment and also request the prevailing wage from the location of the employee’s home. Alternatively, the employer can list the worksite as the employer’s headquarters and recruit out of that location. However, if adopting this alternative strategy, the employer should be mindful to conduct recruitment that also covers the home office (e.g. recruitment that is national in scope). Additional guidance was also provided in the following question which was asked and answered as follows:

20. In the case of a telecommuter or an employee whose location is not specific to the job, please confirm that the notice of posting, recruitment, and prevailing wage determination should be based on the location of the employer's headquarters.

Please see answer to number 19 above.

This guidance also indicates that whenever the job requires work in various locations, the employer may post the Notice of Filing at the company’s headquarters.

But what should the employer do when the employee will work from home, in a location different from that of the employer’s headquarters and will also work from unanticipated locations throughout the US? From the DOL’s response to the Stakeholders’ queries, it would appear that the employer could recruit in the location of the employee’s home. However, in such a case, the employer should take pains to show that it is not filing from the employee’s home location in an attempt to lower the prevailing wage or to minimize US worker applicants. As in the Amsol case, the best course of action would be to obtain prevailing wages for both the employer’s headquarters location and the employee’s home location and ensure that the offered wage exceeded the higher of the two and, also ensure that at least one of the additional three forms of professional recruitment is national in scope. The Notice of Filing can be posted at the employer’s headquarters. The above mentioned Stakeholders Meeting minutes provided further guidance as follows:

21. For purposes of completing ETA-9089, if an employee works from home, what address should be identified in H.1 and H.2--the actual home address of the employee or the address of the employer's headquarters or office from which the employee is based/paid?

Please see answer to number 19 above.

Final Note: When a job is regional, such as an employee working out of a home office but travelling throughout a specific geographic area, the analysis of where to obtain the prevailing wage and recruit can be thorny. Prior to PERM guidance was that the prevailing wage would be determined where the majority of duties are performed. Best practice under PERM would be to use the highest wage within the region/MSA and recruit in the regional edition of a nationwide paper. This gets complicated as there are few nationwide papers with regional editions or newspapers that could be considered regional.

As in the scenario described at the beginning of this article, what if the employer is located in one state, the employee will work from home in another state and also in three other specific states in the region? Again, this issue has not been directly addressed by the DOL. But, employers should ensure that recruitment is performed in the manner best likely to discover qualified US workers. As described above, the employer could recruit from the location of the employee’s home choosing the regional edition of a national newspaper as one form of recruitment; ensure that prevailing wage exceeds the highest of the prevailing wages for each state in which the employee will work; and post the Notice of Filing at the employer’s headquarters.

With regard to roving employees, it is critical that the employer’s advertisement inform US workers that a “home benefit is available” or that the worker “must be willing to work anywhere in the US” or that “travel is required.” Any such requirement must also be included in the prevailing wage request and in Box H.14 on the ETA Form 9089 lest the employer be accused of offering conditions in the advertisements that were less favorable than those offered to the alien in violation of 20 CFR § 656.17(f)(7).

It would seem that the DOL has adopted a “You will know if you made the wrong choice when the PERM gets denied” attitude to the issue of the roving employee. At the recent AILA PERM Conference in New Orleans, many practitioners expressed ongoing frustration with the lack of guidance. Learning through trial and error is not acceptable for a process as costly as PERM and practitioners can ill-afford to demonstrate an inability to correctly advise clients. Another AILA Stakeholders meeting was held last week and roving employee issues were certainly on the list of questions for the DOL. While holding one’s breath is not suggested, the minutes of that meeting will hopefully shed some well-needed light on this tricky issue.

SILVER LINING ON IMMIGRATION AFTER THE NOVEMBER 2010 MID-TERM ELECTIONS

By Cyrus D. Mehta

Now that the Republican party controls the House, what does it portend for immigration? There is a sense of foreboding and pessimism. Most fear that any prospect for Comprehensive Immigration Reform is dead, although it never got jump started even though the Democrats controlled both the chambers of Congress from 2006 until now. Instead, we will see enforcement oriented measures being passed. FAIR has already issued a statement of what it considers immigration reform, which obviously is all enforcement and no sensible expansion of visa categories that would provide for a more orderly flow of legal immigration and stem illegal immigration, http://ht.ly/33QoA. AILA's President David Leopold worries that Rep. Lamar Smith, the expected chair of the House Judiciary Committee and Rep. Steve King, the slated chair of the House Subcommittee on Immigration will pass mean spirited immigration legislation, like HR 4437, which would have criminalized the undocumented, or to use their subpoena powers to investigate harass the President or other leaders of the immigration agencies, http://ailaleadershipblog.org/2010/11/03/the-morning-after/.

An article in Bloomberg BusinessWeek also suggests that businesses may not even see any changes in the immigration system for skilled workers, such as an expansion of H-1B visa numbers or an expansion of the employment preferences, where some applicants must wait for at least a decade or more before they can get green cards, http://bit.ly/cDVMcD. Rep. King has stated in this BusinessWeek article that he would first want to pass measures that would crack down on illegal immigrants before considering proposals that business want regarding much needed expansion in visa categories. But what has skilled immigration, which is mostly legal, have to do with cracking down on illegal immigration and closing the borders? In August 2010, Senator Schumer's border security bill substantially raised the H-1B and L visa fees on companies that had more than 50% of their workforce on H-1B and L visas (all legal workers to boot) to pay for border security, including deploying a couple of drone aircrafts on the US-Mexico border that are used in Pakistan and Afghanistan, http://cyrusmehta.blogspot.com/2010/08/world-according-to-senator-schumer-if.html.

Let's hope that our pessimism is off the mark, although I admit that I might be dreaming given that Rep. King's anti-immiration rhetoric is shriller than most even among other enforcement oriented Republicans, http://bit.ly/a6S0ac. There might be common ground between the President, Democrats and Republicans to pass incremental measures, which is now the new mantra if anything can ever be achieved. The Economist also feels that it might be premature to write off any prospect for immigration reform, http://www.economist.com/node/17366155. Indeed, there is precedent for this. Some of the most innovative ameliorative immigration legislation such as the American Competitiveness in the 21st Century Act and the Child Status Protection Act got passed in a Republican controlled Congress. One common ground between the Administration and the new Congress, at least in the short term, is to work together to pass more business friendly immigration measures, such as more H-1B visas for skilled workers and an expansion in the employment-based preferences, with perhaps adding new categories for business entrepreneurs and those with advanced skills in the sciences and technology. Even Rep. King in the BusinessWeek article seems to be inclined to pass measures "for higher-skilled workers only if the potential employees meet criteria to boost the U.S. economy." All these proposals should be appealing to the new Republican leadership at the helm in the House who believe in the spirit of personal responsibility, hard work and enterprise, without relying on the government for a handout. Immigrants best exemplify this ideal.

Finally, even though Republicans gained a lot in the mid-term elections, beware that an overtly anti-immigration agenda will see you go down in flames like Sharon Angle in Nevada who demonized immigrants in her election campaign commercials or Meg Whitman whose hypocritical attitude towards her immigrant nanny was telling on the voters, http://bit.ly/cZX2Zo . Indeed, it is likely that the reason why the Democrats still control the Senate is because of Latino voters who either rewarded or punished candidates based on their attitude towards immigrants. Barbara Boxer, as an example, was the recipient of this reward.

In the past, one of the reasons for lack of support from Republican leaders, who traditionally supported immigration, was that the Democrats would take credit. This is no longer true after the recent Republican election gains. Now is the time for both the Democrats and the Republicans to work together in Congress, along with the President's support, to pass immigration friendly measures so that both parties can claim credit among voters in future election cycles.