WHAT ONE HAND GIVETH THE OTHER TAKETH AWAY: ARE WE TRULY WELCOMING FOREIGN ENTREPRENEURS TO AMERICA?

By Cora-Ann V. Pestaina

“Our nation has always attracted individuals with great drive and entrepreneurial spirit. As the world's greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.”

The above is an extract from the USCIS’ Entrepreneur Pathways Portal which provides guidance on how entrepreneurs can obtain nonimmigrant visa status through a startup entity. The United States Citizenship and Immigration Services (USCIS) launched its Entrepreneurs in Residence initiative in 2012 and later the portal. Prior to that, in an August 2, 2011 press release, the Department of Homeland Security (DHS) stated that "The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs.” Through the Entrepreneurs in Residence program, USCIS officers are supposed to be trained to recognize the unique nature of a startup and to understand that a nonimmigrant petition based on a startup will not present the characteristics typical of a petition filed through a more established business entity. Startups often lack a formal office space; they may operate in stealth mode in an effort to hide information from competitors; and the foreign national seeking nonimmigrant status in the US often has a majority interest in the startup. Unfortunately, too often a benefit conferred on one hand is taken away by the other hand. USCIS has created these seemingly great avenues for entrepreneurs but other USCIS initiatives and other agencies such as the Department of Labor (DOL) make it harder for those same entrepreneurs to continue to obtain benefits. 

One example is the DHS’ proposed rule, “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” which was published in the Federal Register on October 19, 2015 for comment. In sum, the rule proposes to amend the F-1 student visa regulations regarding optional practical training (OPT) for certain students with degrees in science, technology, engineering, or mathematics (STEM) from U.S. institutions of higher education. Under the current rule, students can receive up to 12 months of OPT upon graduation. In 2008, the DHS published regulations authorizing an additional 17-months extension of the OPT period for foreign students who graduated in STEM fields. The new rule proposes to allow F-1 STEM students who have elected to pursue 12 months of OPT to extend the OPT period by 24 months. This new 24-month extension would effectively replace the 17-month STEM OPT extension currently available to these students. This is indeed a positive development, and it encourages talented foreign students to remain in the United States and contribute to the US economy. 

A STEM graduate may also utilize the OPT period to work for their own startup. But one aspect of the proposed rule might mean that this STEM graduate may not be able to obtain the 24-month extension to continue working for the startup. One of the things that will be required under the proposed rule is the implementation of formal mentoring and training plans by employers for the STEM OPT employee. The employer must also implement a process for evaluating the OPT employee. The STEM OPT extension could be difficult to establish for the OPT employee who is the majority shareholder in their startup. It appears that here the government will want to see proof of the typical employer-employee relationship which totally goes against everything it tries to do through the USCIS Entrepreneurs Pathway portal and erodes the whole idea of the startup. 

Even if the foreign national were to obtain nonimmigrant visa status, that status is temporary. If the foreign national is desirous of obtaining lawful permanent residence in the US through their own company, there s/he may face another roadblock.

Recently, in Step By Step Day Care LLC, 2012-PER-00737 (Sept. 25, 2015), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a PERM labor certification finding that the offered position was not open to U.S. workers because the beneficiary was in a position to control or influence hiring decisions regarding the job. The employer filed a PERM labor certification for the position of “Daycare Center Director” indicating on the application form that the company is a closely-held corporation in which the foreign national has an ownership interest.  The DOL issued an audit request for documentation that included information on the business structure; a statement describing any familial relationships between parties with ownership interests in the company and the foreign national; the name of the employee with the primary responsibility for interviewing and hiring applicants; and the names of the employer’s officials who have control or influence over hiring decisions involving the job opportunity listed on the PERM application. The employer’s audit response showed that the foreign national beneficiary of the PERM application and her husband each held 50% ownership of the company, and they were here on E-2 visas. (The E-2 visa is one such visa that is encouraged for startups in the Entrepreneurs Pathway Portal). The foreign national was the Director and her husband was the Operations Manager. The recruitment was conducted by the company’s Assistant Director.

The Certifying Officer (CO) denied the application on the grounds that the employer had not overcome the presumption that exists that a job opportunity is not bona fide when the employer is a closely-held company where the beneficiary has an ownership interest or a familial relationship with the stockholders, officers, incorporators, or partners, and is one of a small number of employees. The CO took issue with the fact that the hiring official, the Assistant Director, was a subordinate of the beneficiary and is not the usual official having authority over hiring decisions. 

In its motion for reconsideration, the employer explained that while the beneficiary and her husband typically made the hiring decisions in consultation with the Assistant Director, the hiring process was modified in for purposes under the labor certification recruitment because the beneficiary was also the co-owner. The employer held that neither the beneficiary nor her husband were involved in recruitment. The employer argued that the beneficiary and her husband each held E-2 investor visas as a result of purchasing the company and therefore the beneficiary’s stay in the US was not dependent on her position as Director and provided documentation to show that the position was a requirement for daycare businesses under Florida law and did not exist for the benefit of the foreign national beneficiary. The CO nevertheless upheld the denial.

As background, mere existence of a family relationship, or the fact that the beneficiary is the owner of the sponsoring entity, should not lead to a conclusion that a job opportunity was not bona fide.  When determining whether a bona fide job opportunity exists, the CO must consider the totality of the circumstances, considering, among other factors, whether the alien:

1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;
2. Is related to the corporate directors, officers, or employees;
3. Was an incorporator or founder of the company;
4. Has an ownership interest in the company;
5. Is involved in the management of the company;
6. Is on the board of directors;
7. Is one of a small number of employees;
8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and
9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.

Good Deal, Inc., 2009-PER-00309 (Mar. 3, 2010) (citing Modular Container Systems, Inc., 1989-INA-228, (July 16, 1991) (en banc).  The Board should also consider the Employer’s compliance and good faith in the application process. Id.  No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling. See Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77356 (Dec. 27, 2004).

Upon review, BALCA held that having recruitment conducted by a subordinate of the foreign national beneficiary is not in the best interests of U.S. worker applicants. BALCA found it difficult to believe that the beneficiary exercised no influence on the hiring process. BALCA cited 20 CFR 656.10(b)(ii) which states:

The employer's representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.

BALCA held that since the Assistant Director did not normally conduct interviews or consider applications, this regulation was not met. With regard to the employer’s statement that the beneficiary did not need the position since she held E-2 status, BALCA held that the filing of the labor certification indicated the beneficiary’s preference to remain in the position.

The foreign national entrepreneur who successfully obtains nonimmigrant visa status to run a business in the US could later be kicked out when that temporary nonimmigrant visa status expires. In the above discussed BALCA case, the beneficiary held E-2 status which could be extended indefinitely. However, a beneficiary with H-1B status would need to leave the US upon reaching the maximum 6-year limit.  While there may be other options for entrepreneurs on a temporary visa to get permanent residency, such as through the national interest waiver or as a person of extraordinary ability, very few can qualify under these pathways. The majority of skilled foreign nationals get sponsored via an employer through the labor certification process, and the odds of winning labor certification substantially lessen when one is the owner or founder of the sponsoring entity. It is not clear how such conflicting policies could work to “[attract] individuals with great drive and entrepreneurial spirit” and “welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.” What one hand giveth the other taketh away.

WORK AUTHORIZATION FOR H-4 SPOUSES: THE EXPERIENCE THUS FAR

By Michelle Velasco

The U.S. Department of Homeland Security (“DHS)”) announced in February 2015 that beginning May 26, 2015, eligible H-4 spouses of H-1B visa holders could begin applying for employment authorization documents (EADs) from the U.S. Citizenship and Immigration Services (“USCIS”).  This change in the regulations was in keeping with President Obama’s efforts to encourage highly skilled workers to stay and set roots in the U.S.  Whereas before many H-1B visa workers were often the only ones toiling for their entire families, the new H-4 EADs for their spouses provide the primary H-1B visa holders more financial stability because their spouses can also work and add to the family income, the spouses joining the U.S. workforce create new connections within the community, and economic doors are opened for prosperity, such as purchasing homes and growing families.  In the past, the lack of H-4 work authorization has frustrated many spouses who otherwise were qualified and wanted to enter the workforce, but were unable to do so because their H-1B spouses could not apply for green cards due to the crushing backlogs in the EB-2 and EB-3 categories.  Even now, the H-4 EADs are not open to every H-4 spouse; it is only a limited group whose H-1Bs spouses were fortunate enough to have an employer sponsor them for a green card.

As a practical matter, the eligibility criteria for the EADs are fairly straightforward: the H-1B visa holder 

1. Must be the beneficiary of an approved I-140 or 
2. Was granted an H-1B extension pursuant to sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”).  

In both these cases, a Permanent Labor Certification ("PERM") was filed on behalf of the H-1B worker.

When applying for the H-4 EAD, applicants must complete the I-765 and indicate the correct category under which the EAD should be issued; here, the correct category is (c)(26).  In addition, the applicant must provide evidence of his or her eligibility.  This is where things can be confusing.  The USCIS has provided a handy FAQ page for guidance.  The FAQ provides a list of evidence that must be provided along with the I-765 form, filing fee, and two passport-style photos.  First, the applicant must provide evidence of his or her H-4 nonimmigrant status.  This can be a copy of the I-797 Approval Notice for the change of status or extension of status for the H-4 visa or a copy of the applicant’s H-4 visa affixed to the passport.  Second, the applicant must provide proof of the spousal relationship with the H-1B principal immigrant.  This can simply be a marriage certificate.  Applicants whose marriage certificates are not in English must provide a certified translation.  Third, the applicant must submit evidence of the spouse’s H-1B status, such as copies of the H-1B approval notice, form I-94, receipt number of the approved H-1B filing, or passport plus visas and admission stamps.  We also recommend that the applicant show proof that the H-1B has maintained valid H-1B status by providing recent pay stubs.

A fourth set of evidence is required to prove how the H-1B spouse either is the beneficiary of an approved I-140 or has received an H-1B extension pursuant to AC21. To simplify matters, we will first discuss how to demonstrate that an approved I-140 petition exists.  The applicant should submit a copy of the I-797 approval notice for the I-140.  If the approval notice is not available, one could provide a copy of that petition’s receipt notice and a note explaining why the approval notice cannot be provided.  

In cases where the applicant must provide evidence that the H-1B spouse was granted an H-1B extension pursuant to AC21 sections 106(a) and (b), the evidentiary requirements can get more confusing.  When the spouse is the beneficiary of a PERM filed 365 days before the end of the spouse’s 6 year maximum stay in H-1B status, the applicant must provide proof of the PERM’s filing, the date of filing, and the date when the spouse’s H-1B status is or was set to expire.  Copies of the PERM from the DOL website, along with the travel dates of the spouse while in H-1B status and an explanation of how the PERM was filed more than 365 days before the end of the 6 year maximum, should be sufficient.  Where the PERM has been certified and the I-140 timely filed within 6 months of the PERM’s certification date, the applicant should submit copies of the I-140 receipt notice with the certified PERM.  If the PERM has been denied, it would still be considered “in process” or pending for AC21 purposes if the employer has filed a Request for Reconsideration with the Certifying Officer or an appeal to the Board of Alien Labor Certification Appeals (“BALCA”).  If the applicant does not have access to copies of the PERM form, but the I-140 is pending, he or she can submit the receipt notice for the I-140 (or other evidence of its filing) along with an explanation of how it was filed more than 365 days before the 6-year H-1B limit.  

In the event primary evidence is unavailable, USCIS seems to be willing to accept secondary evidence, such as attestations that list information about the I-129 or I-140 petition filings. However, the applicant must first demonstrate why the primary evidence could not be submitted.  If the applicant cannot submit proof of eligibility, the EAD application will be in danger of denial.  

Other issues that may arise out of the H-4 EAD surround the I-140 approval.  The USCIS has expressly written in the FAQ that where H-1B spouse has a revoked I-140 approval, the H-4 EAD will be denied.  However, the FAQ mentions revocations by USCIS, which is presumably when USCIS takes action under 8 CFR §205.2 to revoke an I-140 due to fraud or misrepresentation.  Practically, however, it matters not whether the revocation was automatic pursuant to 8 CFR §205.1(a)(3)(iii)(C) because a former employer withdrew the I-140, or if the revocation was due to fraud because USCIS will deny the H-4 EAD in these cases, no matter what the root cause of the I-140 revocation.  Therefore, the applicant should check the I-140 receipt number on the USCIS case status search function to ensure that the I-140 is still approved.  Sometimes the USCIS online case status function is not updated to reflect a revocation; thus, wherever possible, applicants should be more diligent and ask their spouses to find out the status of the I-140 from the prior employers.

Another potential landmine is in cases where the filing is based on a pending I-140 which is then denied before the H-4 EAD application is adjudicated.  If this occurs and the spouse’s employer is pursuing a Motion to Reconsider or Reopen the denial, or appeal to the Administrative Appeals Office (AAO), the applicant should submit through a response to a Request for Evidence (which the USCIS should be issuing) that a motion or appeal has been filed, and also submit proof that the PERM was filed 365 days before the H-1B’s six year expiration.  

Timing for the H-4 EAD filing is crucial as the expiration of the EAD is based on the spouse’s H-1B expiration, and it behooves the applicant to obtain the longest validity period for the EAD.  For example, if the applicant’s spouse’s current H-1B will expire in May 2016 but the spouse is eligible for a 3-year H-1B extension by virtue of an approved I-140 and pursuant to AC21 section 104(c).  In this case, it makes more sense to wait until November 2015 to file the EAD application concurrently with the H-1B and H-4 extensions of status so that the EAD would be valid through May 2019, instead of filing the EAD application now, getting an EAD valid through May 2016, and then having to file again in early 2016.  

Further, the applicant should be aware that if the EAD application is filed concurrently with an extension of status or change of status application, the underlying extension or change in status application must first be approved before USCIS will adjudicate the EAD application.  While at the time of writing this blog the USCIS processing times for change of status and extension of status applications hover around four months, there is no guarantee that processing times will not lengthen.  If timing is of the essence, the applicant might consider traveling abroad to undergo consular process for the H-4 visa.  Often this is a more speedy method of obtaining an H-4 visa.  Applicants should note that they cannot apply for the H-4 EAD until they return to the U.S. in valid H-4 status.

While on the matter of travel, it should be noted that the EAD card cannot be used to travel and it cannot be used to prove valid visa status in the U.S.  It simply allows the H-4 visa holder to accept employment.    In fact, if the applicant travels while an application to change status to H-4 is pending along with the EAD application, the change of status will be denied and this will likely vitiate the pending application for EAD too.  Thus, if the applicant cannot avoid travel during the pendency of the change of status and EAD applications, he or she must instead undergo consular process for the H-4 visa, be admitted on the H-4 visa, and again file the I-765 for the EAD once he or she is back in the U.S.  Another note we make is that recipients of H-4 EADs are not limited in the type of employment they can accept.  Aside from state licensing requirements for specific occupations (for attorneys, for example), the H-4 visa holders should be able to accept a wide array of employment.  It bears repeating that the EAD does not grant separate visa status; only the H-4 visa provides the requisite visa status and the means by which the nonimmigrant is able to remain in the U.S.

H-4 EAD applicants must be diligent in obtaining evidence of their eligibility and be aware of timing concerns.  For eligible applicants, this opportunity to obtain authorization for employment is welcome news, as it allows for more than just one family member to work lawfully in the U.S.  Still, the H-4 EAD regulation is on shaky ground.  It is being challenged in a lawsuit against the Department of Homeland Security (“DHS”) where plaintiffs argue that DHS overstepped its legal power as granted by the Immigration and Nationality Act when it issued the regulations allowing for the H-4 EADs.  (Save Jobs USA v. U.S. Dep’t of Homeland Security, case number 1:15-cv-00615, U.S. District Court for the District of Columbia, April 23, 2015).  The litigation is ongoing, and it adds to the uncertainty in which many H-1B and H-4 visa holders live in the U.S. Unfortunately, it will have to suffice for the moment because many H-1B visa holders with approved I-140 petitions cannot yet apply for their adjustments of status and the ancillary benefits of an EAD and advance parole.  The disappointing actions of the Department of State (“DOS”) and USCIS in issuing a revised October 2015 visa bulletin disallowed potentially tens of thousands of beneficiaries from applying for their adjustments of status (which would have granted the benefit of applying for EADs for their spouses and other derivative beneficiaries). Those who have already waited many years for an opportunity to truly set roots in the U.S. through a green card and work authorization for their families continue to wait.  In the meantime they must maintain valid H-1B statuses even though their employers have offered them permanent employment, and in the event they lose H-1B statuses, their H-4 family members will lose their status and they too will have to give up on the dream of becoming permanent members of the American way of life.

(This blog is for informational purposes only, and should not be considered as a substitute for legal advice.)

BALCA, WHAT HAVE YOU BEEN UP TO SO FAR IN 2015?

By Cora-Ann V. Pestaina

I’m sure all PERM practitioners would agree that it’s always good (in fact necessary!) to check in with the Board of Alien Labor Certification Appeals (BALCA). One never knows what issues BALCA will comment on next and as we navigate those often treacherous PERM waters, we need all the help we can get! Here are a couple of recent BALCA tidbits. 

BALCA applies Matter of Symantec

In Computer Sciences Corporation, 2012-PER-00642 (Jul 9, 2015) the Certifying Officer (CO) denied the PERM on the grounds that the Employer’s inclusion of the language, “Willingness to travel; may require work from home office” in its recruitment advertisements posted on its website and on a job search website, constituted terms and conditions of employment that exceeded those listed on the ETA Form 9089 in violation of 20 C.F.R. §656.17(f)(6). 

As background, employers recruiting under PERM for a professional position must complete the mandatory recruitment steps required by 656.17(e)(1)(i) as well as three additional recruitment steps provided in 656.17(e)(1)(ii).

The Employer’s advertisements posted on its website and on the job search website were in satisfaction of two of the three required additional recruitment steps. In reversing the CO’s decision, BALCA simply cited its en banc decision in Symantec Corp., 2011-PER-1856 (July 30, 2014) which I previously blogged about in greater detail here, and held that 656.17(f) does not apply to additional forms of recruitment. The Employer dodged a bullet here.

BALCA finds that Employer’s letter was within the record and can be considered on appeal

Once a PERM is denied, if the Employer files a motion for reconsideration, under 656.24(g)(2), this motion can only include (i) documentation that the Department actually received from the employer in response to a request from the CO to the employer; or (ii) documentation that the employer did not have an opportunity to present to the CO, but that existed at the time the PERM was filed and was maintained by the employer to support the PERM application in compliance with 656.10(f).

In New York City Department of Education, 2012-PER-02753 (June 19, 2015), the CO first denied the PERM application on the grounds that the Employer failed to provide a recruitment report that accurately accounted for the number of applicants for the job opportunity. The Employer filed a motion for reconsideration arguing that it properly accounted for all applicants. The CO, ignoring this request for reconsideration, issued a second denial letter, finding that the Employer did not provide job-related reasons for its rejection of US workers. Based on the documentation the Employer had submitted with the audit response, it appeared that US workers were rejected because they expressed disinterest in the position but the CO also reviewed the Employer’s interview notes that stated the candidates were available “immediately” or “soon.” The Employer filed a second motion for reconsideration explaining, not only that the CO cannot ignore the first motion and issue a second denial, but, moreover, that it had indeed lawfully rejected the US workers. Along with its motion the Employer provided a letter from its Executive Director explaining the company’s interview process and the fact that the Employer made the determination to reject the applicants after they expressed their disinterest at a second interview. 

Since the Employer failed to properly explain its interview process and reasons for rejection in its audit response, BALCA found that the CO was justified in his denial of the case. However, in forwarding the case to BALCA, the CO acknowledged the letter that the Employer submitted along with its second motion explaining its hiring process. The CO did not refuse to accept it on the grounds that it was barred under 20 CFR 656.24(g)(2). Under that regulation, since the Employer’s had previously had a chance to submit this letter with its audit response but did not and since this letter was not documentation that existed at the time the PERM was filed, the CO would have been justified in refusing to accept it. But since the CO did not, the letter became part of the record that BALCA had to consider upon appeal. With the letter fully explaining the Employer’s interview process, BALCA had no choice but to find that the US workers had been lawfully rejected. 

The take away from this case is how important it is to fully respond to an audit request. Had the CO rejected the Employer’s letter, the denial would have been upheld.  As BALCA pointed out, the CO’s audit letter very clearly requested a report that lists the date(s) the employer contacted the US worker; the dates the employer interviewed the US worker; the specific reasons the US worker was rejected; and information that documents the employer contacted the applicant(s). In its audit response, the Employer failed to provide this detailed information.

BALCA held that an original signature is not required on the recruitment report but the report must be signed

In another case involving New York City Department of Education, BALCA upheld the denial of three PERMs finding that the typed name of the Executive Deputy Director at the bottom of the recruitment report did not constitute a valid signature. The CO had denied the Employer’s PERM after audit for failure to submit a signed report as required under 656.17(g)(1). The Employer, in its request for reconsideration, explained that it had a physically signed recruitment report in its audit file and this report, due to administrative error, simply was not included in the audit response. The Employer alternatively argued that the regulations do not require a handwritten signature and the typed name of the Employer’s Deputy Executive Director was satisfactory.  The CO transferred the file to BALCA where each of the Employer’s arguments were shut down.

BALCA held that the fact that the Employer had a physically signed copy of the recruitment report speaks to the fact that the typed name on the bottom of the report submitted with the audit response was not intended to be a signature. The Employer argued that “original signatures” are not required. BALCA agreed that 656.17(g)(1) does not require an original signature but again stated that the typed name on the bottom of the report was not intended to be a signature – original or otherwise. The Employer argued that fundamental fairness ought to prevail as it had only failed to submit the physically signed report due to administrative error. BALCA held that the Employer had been given an opportunity to submit the signed report with the audit response and failed to do so. Finally, the Employer argued that each statement in the recruitment report was verified by other documentation submitted with the audit response and therefore the omission of the physically signed report was immaterial. BALCA, using one of its favorite quotes, held that “PERM is…an exacting process.” Essentially, because a signature is a regulatory requirement under 656.17(g)(1), then there must be a signature, no matter how unfair it may seem in light of all the facts of the case.

It’s really a shame whenever something so simple and unintended leads to a PERM denial or in this case, three PERM denials. But it highlights the importance of checking and rechecking an audit response before it is submitted and the importance of having, if possible, more than one pair of eyes review the response prior to submitting it. PERM can be a very unforgiving process.

BALCA says US workers can be lawfully rejected for “lack of experience”

In Presto Absorbent Products, Inc., 2012-PER-00775 (May 26, 2015), the CO denied the PERM finding that the Employer failed to provide lawful reasons for rejection. The Employer’s recruitment report stated that the Employer received eight resumes and that the applicants lacked experience. The Employer also stated that “All applicants were reviewed to determine if they would be able and qualified to perform the duties of the position within a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA held that the regulation does not indicate a level of specificity beyond what the Employer provided and that “lack of experience” is a lawful reason for rejecting applicants.

While it is indeed heartening anytime BALCA errs on the side of reason, I don’t think PERM practitioners ought to rely too heavily on this decision and it’s always best to be as specific as possible in providing the reasons for rejection of US workers. For instance, instead of “lacks the technological experience” it would be clearer to state, “lacks experience in the required technologies such as C++, Java & PL/SQL” and instead of “lacks experience” it might be better to say “applicant possesses only 2 years of experience but the position requires 5 years of experience.” Even if it may appear silly to have to spell out the obvious, it might be valuable time and money saved by preventing an erroneous denial.

BALCA comments on newspaper circulation and distance to the area of intended employment

In Pentair Technical Products, 2011-PER-01754 (Aug. 5, 2015), the Employer used the San Antonio Express newspaper (the “Express-News”) for its first Sunday newspaper advertisement to recruit for a professional position in Pharr, Texas. The CO denied the PERM on the grounds that the Express-News is circulated in San Antonio, Texas and not in the area of intended employment – Pharr, Texas. 

Under 20 CFR § 656.17(e)(1)(i)(B)(1), one option for an employer’s mandatory print advertisements for a professional position is “[p]lacing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available US workers.”

In a motion for reconsideration, the Employer argued that the Express-News is circulated in Pharr, Texas. The Employer argued that it chose the Express-News as it is the largest newspaper with general circulation in Pharr in order to reach the largest number of US workers. The Employer’s attorney also argued that he had personally contacted the Express-News and a representative at the newspaper had verified that the paper is circulated in Pharr, Texas. The CO nevertheless found that his denial was valid because San Antonio is four hours away from Pharr, well outside commuting distance and so the Employer had failed to advertise in the area of intended employment.

BALCA found that the issue of whether or not San Antonio is outside normal commuting distance from Pharr is relevant only if the Express-News were only available in San Antonio and not in Pharr. However, the record established that the Express-News is a newspaper of general circulation in Pharr. Accordingly, the fact that it is published in San Antonio is of no legal consequence. 

BALCA pointed out that when a single area of intended employment is served by multiple newspapers, the CO ought not to be concerned with which paper reaches the most people but rather with whether the newspaper reached the intended audience and is a “newspaper of general circulation in the area of intended employment.” As an example, BALCA stated that if Trenton, NJ is the area of intended employment, whether The New York Post is more “appropriate” than The Trenton Times because it has more readers is irrelevant and there is nothing in the regulations that requires an employer to utilize the newspaper with the highest circulation in the area of intended employment or the newspaper published closest to the area of intended employment.

At first look, the case appears to be very encouraging. As long as the newspaper reaches its intended audience, all is well. Not so fast. This is another one of those cases where BALCA’s decision is expressly limited to the precise facts of the case. BALCA takes time to point out that in this case the CO did not deny the PERM based on a finding that the Employer had failed to utilize the “most appropriate” newspaper. The only issue raised in the denial was whether the Employer placed a newspaper advertisement in the area of intended employment so that is the only issue that BALCA has addressed. As to whether Express-News was the newspaper “most appropriate” to the occupation for which the Employer was recruiting, we will never know.

It can be very difficult for employers to decide where to advertise. This case answers the question of whether it is permissible to advertise in The New York Times for a position in New Jersey. Yes, it is permissible because The New York Times is a newspaper of general circulation in New Jersey. But this case does not provide any guidelines for an employer struggling to determine which newspaper is “most appropriate.” For instance, in recruiting for a professional position in New York City, how does an employer decide between The New York Post vs. The New York Times? It is significantly more expensive to advertise in The New York Times and so an employer may not want to do that unless that newspaper is the only newspaper that would be permissible under the regulations. What statistics would that employer need to examine? Should that employer just assume that The New York Times is the newspaper most read by professionals and therefore The New York Times will always be “most appropriate” in recruiting for any professional position? In a footnote, BALCA mentioned that the Employer utilized The Monitor as the newspaper for the second Sunday advertisement and that this was not challenged by the CO. BALCA pointed out that the regulations refer to “newspaper” in the singular in requiring advertisements to be placed “in the newspaper of general circulation in the area of intended employment.” BALCA commented that the regulations do not appear to contemplate a situation where more than one newspaper is circulated in the area of intended employment and the newspapers are equally appropriate given the employment at issue and the workers likely to apply for the job. BALCA conveniently declined to comment on that issue. So while it is great that employers can choose any newspaper as long as it is one of general circulation in the area of intended employment, employers need to remain concerned about ensuring that the paper chosen is the “most appropriate” paper and it’s probably just best to use the same paper for both of the Sunday ads. 

These recent cases highlight the “little” things that can lead to a big denial of a PERM. Just reading these cases creates heightened awareness of potential issues and naturally leads to better and more focused reviews of documentation prepared during the PERM process and documentation submitted to the Department of Labor.

BALCA SAYS ECONOMIC BENEFITS SHOULD BE LISTED IN PERM RECRUITMENT

by Cora-Ann V. Pestaina

PERM is an exacting process. We’ve read those words over and over in various Board of Alien Labor Certification Appeals (BALCA) decisions. The Department of Labor (DOL) Certifying Officers (CO) and BALCA continually use those words to justify the most heartless denials; callously brushing aside employers’ good faith efforts in favor of citing PERM regulations to justify denials for harmless technical errors. Yet, at other times, the employer cannot rely only on the PERM regulations but must look to the purpose behind the regulations to know what to do. PERM can sometimes be more of an exhausting than an exacting process. 

As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.” In October 2011, I wrote a blog entitled BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS discussing BALCA’s decision in  Matter of Emma Willard School, 2010-PER-01101 (September 28, 2011). In that case, BALCA held that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. The employer had recruited for the position of “Spanish Instructor” and had failed to indicate in any of its advertisements that “subsidized housing” would be offered. It was so nice to see BALCA give U.S. workers credit for being intelligent enough to recognize that a tiny advertisement could not possibly list all the terms and conditions of employment and not penalize the employer for “confusing”, “deterring” or somehow “adversely affecting” the US worker. BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. Since the choice not to list the offered wage would not lead to an assumption, on the part of the U.S. worker, that the employer is offering no wage, similarly, the employer’s choice not to list employment benefits would not lead a U.S. worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

While Emma Willard was a step in the right direction, BALCA timidly limited its decision to the facts of the case and stated that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Unsurprisingly, a different BALCA panel has seized on that as reason not to follow Emma Willard.

In Matter of Needham-Betz Thoroughbreds, Inc. 2011-PER-02104 (December 31, 2014) BALCA considered what employee benefits for the position of “Farm Manager” could be considered “terms and conditions” of employment that should be included in advertisements under PERM. In that case, in response to the CO’s audit request, the employer explained that the foreign national lived at the employer’s address because the employer offers employees an option to live rent-free, onsite at the job location which is a horse farm and the foreign national took advantage of this option. The CO denied the PERM because none of the PERM recruitment or the Notice of Filing (NOF) indicated the potential for applicants to live in or on the employer’s establishment. The CO argued that the terms and conditions offered to US workers were therefore less favorable than those offered to the foreign national and that this was in violation of 20 CFR § 656.17(f)(7). 

The employer filed a request for reconsideration arguing they were not in violation of 656.17(f)(7) because that regulation does not obligate the employer to list every aspect of the offered position. The CO denied the case and forwarded it to BALCA with a Statement of Position which cited Blue Ridge Erectors, Inc., 2010-PER-00997 (July 28, 2011) which held that the option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity and that U.S. workers who might have responded to an ad if on-premises housing was an option were not given the opportunity to do so. The CO also distinguished the holding in Emma Willard by arguing that in Emma Willard, a “significant majority” of its boarding school teachers, including its U.S. workers, lived in employer-provided housing, whereas in the matter at hand, the employer failed to establish that housing would be equally available to U.S. applicants. The CO made sure to point out that the BALCA panel in Emma Willard limited their holding to the facts of that case. 

In response to the CO’s Statement of Position, Needham-Betz Thoroughbreds argued that the CO is not required to speculate whether recruitment efforts beyond those required by 20 CFR Part 656 might possibly have induced other U.S. workers to apply for the position.

In its decision, BALCA agreed with the CO that Emma Willard was not controlling because it is not a binding en banc decision. BALCA found Blue Ridge Erectors to be more persuasive along with Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014). In Phillip Dutton, BALCA reasoned that while benefits like wages are not required to be listed in the advertisements, wages are a legal requirement of work in this country whereas no-cost, on-site housing is not. BALCA stated that no reasonable potential applicant would have assumed that no-cost, on-site housing was a benefit associated with the job opportunity and therefore, qualified U.S. workers may have been dissuaded from applying.

In response to Needham-Betz Thoroughbreds’ argument that 656.17(f)(7) regulates only what is contained in an advertisement and does not address silence about certain aspects of the job opportunity, BALCA held that such an interpretation is too narrow and inconsistent with the purpose behind the PERM program which is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity prior to the granting of a labor certification. BALCA held that a more consistent interpretation of 656.17(f) is to review the terms and conditions of employment in the ad and whether they are less favorable than those being offered to the foreign national. BALCA reasoned that free housing isn’t a standard benefit that can be readily assumed, so it should have been included in the advertisements.

What we have now learned at Needham-Betz Thoroughbreds’ expense is that any unusual economic benefits should be listed in PERM recruitment. While U.S. workers usually expect benefits like wages, health insurance and vacation days and these need not be listed, U.S. workers need to be informed of other benefits that might induce them to apply. But this begs the question, how do we know what could induce a U.S. worker to apply for a position? The employer in Needham-Betz Thoroughbreds argued that this could be a slippery slope! Would U.S. workers be enticed by the promise of free lunch on Wednesdays? What if a law firm offers sleeping pods so that its attorneys can work all week and never have to waste time going home? What about cheese tasting Fridays? How do we know that a U.S. worker doesn’t really, really love cheese and would be induced to apply because of it? Sure, this may be taking it too far and the DOL may indeed have a point. But, as the DOL always says, PERM is an exacting process. If an employer who conducted good faith recruitment argues that omission of its name on the Notice of Filing (NOF) did not make a difference since only its own employees saw the NOF and that the purpose behind the NOF has been met, the PERM will still be denied and the employer will be told that PERM is an exacting process.  Yet, in cases where the employer has complied with the regulation, the DOL says that the employer should look to the purpose behind the regulation.

It really can become exhausting. As PERM practitioners, we must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should err on the side of caution and include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits; and whatever might be deemed to be different from the “usual” job benefits.

So is Emma Willard still good for anything? I think Emma Willard can still be used to show that U.S. workers are intelligent. Too often PERM denials speak of the “confused” and “adversely affected” U.S. worker when in some cases that is the same U.S. worker who supposedly potentially qualifies for a professional position requiring a minimum of a 4-year Bachelor’s degree. In those cases, one can’t help but think that if a U.S. worker cannot read and understand a simple advertisement and is so easily “deterred’, “confused” and “adversely affected” then how could he possibly be qualified for an offered professional position?  Moreover, Emma Willard may also stand for situations where the benefit is obvious, and it all depends on context. A boarding school teacher can be expected to get subsidized housing. On the other, it is unusual for farm managers to get free housing.  

What is so interesting about PERM is the same thing that can drive you crazy, if you let it. These BALCA decisions show that we can never let our guards down for a minute.

LISTING THE FOREIGN NATIONAL'S QUALIFICATIONS ON THE PERM FORM

by Cora-Ann V. Pestaina

One of the most surprising lessons to learn for practitioners who regularly file PERM labor certifications is that past certifications do not always mean future certifications. In other words, just because 10 PERM labor certifications prepared in the same way have all been certified without issue does not mean that the 11th one will also be certified. That is the nature of PERM. The Department of Labor (DOL) is notorious for suddenly coming up with new and previously unheard of reasons for denial. 

Most recently, there have been reports of a slew of PERM denials, primarily for physician and teaching occupations, on the basis that Section H.14 of the ETA Form 9089 indicates that a medical or other license is required, but Section K does not list that the PERM beneficiary holds a license. What makes these denials even more baffling is that in many of these cases, the foreign national’s work experience practicing medicine or teaching in the US was listed in Section K thereby providing proof that the foreign national was indeed licensed.  Moreover, the ETA Form 9089 does not provide any specific section in which to list licenses. Most disturbing is the fact that the DOL did not previously deny any PERM applications for failing to list a license on the form. But that did not stop the denials from coming.  The American Immigration Lawyers Association (AILA) recommends that denials of a PERM labor certification solely because of not listing a license should be reported to the AILA-DOL liaison committee. A motion for reconsideration should be filed at the same time.

The DOL has promised to issue an FAQ (Frequently Asked Questions) on this issue. But since the ETA Form 9089 will remain unchanged, it is anticipated that the FAQ will advise practitioners to list the foreign national’s qualifications in Section K.9. AILA raised the issue of the denials in a DOL Stakeholders Meeting on December 12, 2013 (AILA Doc. No. 14011449). In sum, the DOL responded with:

In general, if an employer states that a specific position requires a license, the employer should indicate that the beneficiary has the license. The appropriate place to list the license is under K.9 so that the analyst can compare the requirements and the beneficiary’s qualifications. OFLC will issue an FAQ to spell this out more clearly. When stakeholders asked OFLC to consider in the future, issuing an FAQ in advance of the change in practice, OFLC agreed to take this into consideration if there is a decision to make a policy change. OFLC is continuing to examine how to address cases already denied on the basis that Section K did not list the license or certification. Employers with denials on this basis may wish to file a Request for Reconsideration of the denied case to at a minimum preserve the issue until OFLC develops further guidance.

At the recent AILA National Immigration Conference in Boston on June 18-21, 2014, representatives of the DOL indicated that the instructions in Section K.9 of the ETA Form 9089 already instruct practitioners to list “job duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc.” Accordingly, the DOL expects practitioners to list all the experience and qualifications gained with a particular job under the particular job experience listed on the ETA Form 9089. At the AILA national conference, it was also suggested that Section K of the ETA Form 9089 can be completed to only indicate the foreign national’s license or other special qualification earned during a specific time period when he was not also earning work experience and the ETA Form 9089 will not be denied for failure to list an employer’s name and other details. Other qualifications that need to be included in Section K.9 of the ETA Form 9089 include (See AILA InfoNet Doc. No. 14041655. (Posted 04/16/14):

• Licensure, or eligibility for license, e.g., Medical License, Teacher Certification, Professional Engineer (PE). 
• Knowledge or coursework acquired in a course of study. 
• Professional certificates or diplomas, e.g., Microsoft certification, Health and Safety Certificate, CPR Certificate, Engineer-in-Training Certificate. 
• Board Certification, or Certification Eligible, e.g., Board Certification in Internal Medicine, Board Certification in Immigration Law. 
• Second degree, if required by employer, e.g., Bachelor’s in Civil Engineering, in addition to a Ph.D. 
• Degree or other credential required at H.4, “education: minimum level required,” does not match the foreign national’s credential at J.11, “highest level achieved relevant to the requested occupation” [e.g., H.4 requires a BS in Chemical Engineering; J.11 indicates foreign national has a (relevant) Ph.D. in Process Engineering, but foreign national also has a BS in Chemical Engineering that cannot be entered anywhere in Section J or K].

The issue of making every attempt to set forth the foreign national’s qualifications on the ETA Form 9089 in a manner that ensures the Certifying Officer’s (CO) comprehension was also highlighted in the Board of Alien Labor Certifications (BALCA) case, Matter of The Clariden School, 2011-PER-02857 (January 30, 2014). In that case, the primary job requirements for the position of “AMI Montessori Elementary Teacher” as listed on the ETA Form 9089 included a Bachelor’s degree in any discipline and AMI (Montessori) Certification. The Employer indicated in Section H.7 of the ETA Form 9089 that an alternative field of study was acceptable; specifically a Bachelor’s in Education plus AMI Certification. In Section H-8 the Employer also indicated that it would accept the alternative combination of a Master’s degree, and one year of experience. In Section H-14, the Employer noted that AMI Certification is required.

In Section J.11 of the ETA Form 9089 which requires the Employer to list the highest level of education achieved relevant to the occupation, the Employer checked “Other” from a list of options that included “None,” “High School,” “Associate’s,” “Bachelor’s,” “Master’s,” “Doctorate,” and “Other.” The Employer specified in Section J.11-A that the “Other” classification was AMI Certification. The Employer reported that the Alien obtained the AMI Certification in 2006 at the Montessori Institute of Milwaukee. The CO denied certification under 20 C.F.R. § 656.17(i)(1) on the ground that the application did not indicate that the foreign national met either the primary or the alternative educational requirements of a Bachelor’s degree in any discipline or a Master’s degree in any discipline.

In its request for reconsideration/review, the Employer argued that it answered Section J.11 accurately because AMI Certification was the highest education level achieved by the foreign national and that such a certification is a level of education higher than Bachelor’s but lower than a Master’s or a Doctorate. The Employer pointed out that the motion for reconsideration was its first opportunity to explain and clarify its answer on the ETA Form 9089, Section J, and that it was supplying supporting documentation which included a document from the Montessori Training Center of Minnesota stating that one of the admission requirements for its AMI Montessori Diploma program is that the applicant holds a Bachelor’s degree.

The CO refused to bend and affirmed the denial arguing that the employer’s representation on the ETA Form 9089 that Other – AMI Certification is the highest education level achieved by the foreign national did not enable the DOL to verify from the face of the application that the foreign worker earned a Bachelor’s degree which is the minimum education level required. The CO then went on to present the novel argument that “there is sufficient free form space on the ETA Form 9089” for the employer to disclose, for example, that the foreign national possessed a Bachelor’s degree (or its equivalent) in addition to AMI Certification.

BALCA thankfully saw reason and held that while the initial denial could be understood since it is hardly intuitive that AMI Certification is a higher level of education than a Bachelor’s degree, the CO’s insistence that the Employer disclose the foreign national’s holding of a Bachelor’s or Master’s degree be disclosed on the ETA Form 9089, even in the face of documentation on a motion for reconsideration showing that a Bachelor’s degree is a prerequisite for the foreign national’s admission to the Minnesota Montessori Training Facility for its AMI certification program, was unreasonable and unsupported by the regulations. BALCA was not persuaded by the CO’s claim that the ETA Form 9089 had adequate free form text fields finding, as any reasonable person would, that the form actually does not have any obvious free form space for clarifying why a person would necessarily have at least a Bachelor’s degree to have obtained an AMI certification.

Matter of Clariden and the recent PERM denials highlight the fact that practitioners need to find some way to list all of the foreign national’s credentials somewhere on the ETA Form 9089. While we await the DOL’s forthcoming FAQ, it is important to make every attempt to alert the CO that the foreign national possesses the qualification required for the offered position. If the offered position requires experience in specific technologies then these technologies need to be listed somewhere in the job descriptions of the foreign national’s past experience. If the offered position requires any license, certification, knowledge or anything other than work experience, it needs to be listed in Section K. This information can be listed in Section K.9 between asterisks or in capital letters or in any manner at the bottom of any job description for the foreign national’s past experience or it can be listed on its own in Section K.9. 

The moral of the story is basically that anything which could remotely be unclear to the CO should be explained somewhere on the ETA Form 9089, notwithstanding the space limitations. But with regard to the recent Section K denials, the hope is that once the FAQ has been published the DOL will apply its requirement prospectively rather than to already pending cases. In such matters, the DOL really ought to hold itself accountable for setting a precedent for how the ETA Form 9089 should be completed merely by its certification of all prior cases. 

DOL POLICY ON LAID-OFF U.S. WORKERS FOR PERM LABOR CERTIFICATION APPLICATIONS

By Cyrus D. Mehta

The filing of a labor certification application is normally the first step when an employer sponsors a foreign national employee for permanent residence. Under the labor certification process, the employer is required to demonstrate that it unsuccessfully conducted a good faith recruitment of the US labor market at the prevailing wage before it can proceed to sponsor the foreign national employee.

The Department of Labor, under the slim authority given to it in INA 212(a)(5) has promulgated complex rules in 20 Code of Federal Regulations (CFR) Part 656 that govern how an employer must establish a good faith test of the US labor market. These rules, which have created a huge “labor certification bureaucracy”, also reflect a concern for US workers who were laid off within 6 months of filing the labor certification application. Specifically, 20 CFR 656.17(k) provides:

1) If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

(2) For the purposes of paragraph (k)(1) of this section, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

The requirement for an employer to have notified and considered all potentially qualified laid-off workers has always been a touchy issue for employers. It is easier for an employer to broadcast advertisements and undertake other prescribed recruitment steps for prospective US workers than for an employer to contact its own prior workers regarding a job opportunity that is the subject of the labor certification application. The notification requirement of all laid off workers in the specific occupation or related occupation has also been open to varying interpretations. Would it suffice if the laid off worker was told to check job opportunities in the future on the employer’s website or must the worker be actually notified when labor certification is being sought in the same job opportunity?

The Department of Labor's Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications. 

The new Q&A asks, "How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?" The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and invite the worker to monitor the employer's job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply. 

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. "Simply informing a laid-off worker to monitor the employer's website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer's regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity," the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

While the DOL has clarified the notification requirement for laid-off workers, must an employer contact all laid off workers in the specific or related occupation for which labor certification is sought even if the employer knows that the laid-off worker’s qualifications do not objectively meet the requirements of the position? For example, the job opportunity for which labor certification is being sought, let’s say a Software Engineer, requires five years of experience in certain computer programming languages like C++, Java and Python. The employer knows that a former worker, also a Software Engineer, who was laid off 3 months ago only had 1 year of experience in C++, but not Java and Python. Is the employer required to notify this worker under 20 CFR 656.17(k) when the employer knows that the laid off worker is not qualified for the position?

The employer must also check off a box on ETA 9089, Section 1.e.26,  which broadly asks whether the employer had a layoff in the area of intended employment in the occupation of the job opportunity or a related occupation within 6 months of filing the application. The checking off the “yes” box is likely to trigger an audit and further scrutiny. The next box Section 1.e.26A, asks “were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?” If the employer checks off the “no” box or the “NA” box, would that be permissible if the laid off worker is clearly not qualified for the position?   In other words, when an employer knows that a laid-off worker is not potentially qualified, may it only consider the worker’s qualification or does it also need to notify that prior worker? If the labor certification is audited, the DOL will request documentation to establish the number of US workers in the occupation or in a related occupation that were laid off by the employer; a listing of all occupations relevant to the layoffs; an explanation as to why notification or consideration of the employer’s potentially qualified laid-off US workers was not applicable; and proof that any laid off US workers not notified and considered by the employer were not potentially qualified for the job opportunity.

The Board of Alien Labor Certifications in Matter of Federal Home Loan Mortgage Corp, 2011-PER-02902 (BALCA February 10, 2014)  held that an employer was justified in rejecting a laid-off worker who was not qualified for the position. While it is not clear from this decision whether the employer had notified the laid off worker, it is clear from the resume that the laid off worker was not qualified for the position, according to BALCA. The position in the instant case required a very deep knowledge of SAS, including SAS on Unix and SAS for Windows. The laid-off worker did not have experience with these program tools. Although the Certifying Officer in denying the labor certification assumed that the laid off worker would have obtained the same skills and knowledge for the position for which labor certification was sought, having worked with the employer for three years, BALCA found that the CO’s assumption was unfounded and unsupported by the record. Cisco Systems, Inc, 2011-PER-02900 (BALCA April 26, 2013), however, provides more clarity regarding whether an employer needs to notify a laid-off worker who is not qualified for the position. There BALCA held that the employer who had not notified a laid-off worker was justified in its rejection of that worker who clearly lacked the qualifications for the position. 

It may thus be defensible for an employer to not notify all laid off workers in the occupation for which labor certification is sought, or a related occupation, unless the laid off worker is potentially qualified for the position. Of course, when in doubt, the employer must contact the laid-off worker per the new DOL FAQ. Unfortunately, in the world of labor certification, the DOL imposes unrealistic requirements and burdens upon employers, and one can never know how the DOL will react when an employer justifies that its reason for not notifying laid-off workers was because they were unqualified for the position. The DOL has publically indicated that BALCA does not speak for it, and it may not consider itself to be bound by Matter of Federal Home Loan Mortgage Corp or Cisco Systems. Therefore, employers are advised to tread very cautiously when workers have been laid off within six months prior to filing a labor certification on behalf of a foreign national employee.   

PERM AUDITS REQUEST SWORN DECLARATIONS REGARDING IMPROPER PAYMENTS

By Cora-Ann V. Pestaina

Recently, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) published its factsheet with statistics on the PERM program for FY2012 covering the period from October 2011 to September 16, 2012. Of the 67,400 PERM applications received during that period, 45% were audited for review. While audit notifications discussing the employer’s use of an employee referral program, roving employees, or bearing requests for the resumes of all applicants are so frequently issued that they have almost become par for the course, the newest audit request came as quite the surprise. The latest audits now request declarations from the employer and the foreign worker, each signed under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification. Specifically, the audit request states:

Please provide declarations from the employer and the foreign worker, each signed by the respective individual under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification, including payment of the employer's attorney's fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application. Such payments include but are not limited to legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process.  Note that any payment of fees by the foreign worker or third party for the benefit of the employer constitutes a "receipt of payment" by the employer, despite the fact that such payments may have been made directly to a party other than the employer - e.g., the employer's attorney, Department of State, etc.


If any such payments were made, please provide a list outlining the payment amount, who made the payment, to whom payment was made, dates, and the purpose of the payment.
If payments were received from a third party to whose benefit work to be performed in connection with the job opportunity would accrue, please provide documentation explaining both the business relationship between the employer and the third party and the benefit of the work performed, or to be performed, in accordance with the Department's regulations at 20 CFR § 656.12(c).
If payments were made to the employer by the foreign worker as a result of an agreement/contract entered into prior to July 16, 2007, please provide documentation evidencing both that an agreement existed and that it was entered into prior to July 16, 2007. Examples include the contract, the agreement or a declaration signed by both the employer and the foreign worker under penalty of perjury, in the case of oral agreements.

The issue of payments for activity related to obtaining permanent labor certification first came up when the DOL published its final rule to "enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States" which took effect on July 16, 2007. See 72 Fed. Reg. 27,903-27,947 (May 17, 2007). The rule revised the regulations found at 20 CFR §656 and implemented substantial changes to the labor certification process, including prohibition on the sale, barter, or purchase of labor certification applications and a requirement that employers pay all attorney's fees and costs associated with labor certification. The rule also made unenforceable any employer agreements requiring employees who leave within a certain time period to pay reimbursement costs associated with the labor certification. In passing this rule, the DOL rationalized that a prohibition against the transfer of labor certification costs from sponsoring employers to foreign national beneficiaries keeps legitimate business costs with the employer, minimizes improper financial involvement by aliens in the labor certification process, and strengthens the enforceability of the bona fide job opportunity requirement. All reasoned opposition to the rule prior to its promulgation fell on deaf ears.

On July 16, 2007, the DOL also issued a FAQ to clarify certain aspects of the rule. The FAQ explained that pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity (including recruitment activity and the use of legal services) related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign national beneficiary will benefit that party. The preamble to the rule provided the example of physicians who frequently have split appointments between a Veterans Affairs Medical Center (VAMC) and an affiliated institution of higher education. In these cases, although there is one ``employer of record'' who files the labor certification application, the university, as a legitimate third party, could reimburse the VAMC for costs associated with the labor certification.“Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor.  This includes the prohibition against the alien paying the employer’s attorneys’ fees in connection with the labor certification application.

The FAQ clarified that an employer, or attorney representing an employer, who entered into a contract where payments from the foreign national are either owned after July 16, 2007 or owed prior to July 16, 2007 but not paid until after that date, have the right to seek the payment provided the payment obligation accrued prior to July 16, 2007. The employer must answer YES to Question I.e.23 on the ETA Form 9089 which asks, “Has the employer received payment of any kind for the submission of this application?” Then, the employer must explain and provide supporting details in I.e.23-A which states, “If Yes, describe details of the payment including the amount, date and purpose of the payment.”

The FAQ also explained another exception to the rule which provides that “attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity.” The rule also did not prohibit the alien from paying fees associated with the subsequent visa petition (Form I-140) and the adjustment of status application (Form I-485).

Pursuant to §656.20(a), an audit letter may be issued by the DOL if a labor certification is randomly selected for quality control purposes, or if, after reviewing the application, the certifying officer finds more information is needed before a determination can be made. Neither of these reasons justifies this new request for declarations. Questions I.e.23 and I.e.23-A on the ETA Form 9089 already address the issue. In response to an audit, the employer must submit a copy of the submitted ETA Form 9089 with original signatures in Section L (Alien Declaration),  Section M (Declaration of Preparer (if applicable)), and Section N (Employer Declaration) to affirm that the information listed is true and accurate. As clearly stated on the ETA Form 9089, each declaration must be signed under penalty of perjury.  In light of this, it is not clear why additional sworn declarations are now being requested. In any event, it is important to respond truthfully.

If the employer did not receive payments from the foreign national or a third party, the employer may submit a signed and notarized statement as follows:

[Employer name] did not receive payment of any kind from the [foreign national] or from a third party for any activity related to obtaining permanent labor certification. 


[Employer name] did not receive payment for the legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the labor certification application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 


I swear under penalty of perjury that the foregoing is true and correct.

The foreign national may submit a signed and notarized statement as follows:

I did not pay [Employer name] any fees in relation to the filing of a labor certification application on my behalf.  


[Employer name] did not receive payment from me for the legal fees, administrative fees, advertising costs and/or any other costs or fees related to the filing of the application. Also, [Employer name] did not ask me for any wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 


I swear under penalty of perjury that the foregoing is true and correct.

Only time will tell whether this new request will become another audit standard. It is essential that practitioners inform new clients and remind existing clients of the rule regarding payment of fees in connection with a labor certification. It is understandable why an employer would want to seek some type of protection, e.g. through employer agreements for reimbursements, against spending thousands of dollars to sponsor a foreign national only to have him leave the moment he obtains permanent residence. But employers must also be informed that the DOL, under §656.31(a), may deny any labor certification if the certifying officer finds the application contains false statements, is fraudulent or otherwise submitted in violation of the DOL’s regulations. Under §656.31(b) the DOL may, if it learns that an employer, attorney or agent is involved in possible fraud or willful misrepresentation, refer the matter to the Department of Homeland Security or other appropriate governmental authority and suspend processing of any labor certification involving the employer, attorney or agent until completion of any investigation. Under §656.31(f) the DOL may debar an employer for up to three years upon a determination that the employer has participated in or facilitated “the sale, barter or purchase of permanent labor applications or certifications, or any other action prohibited under §656.12” or “the willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification” or “a pattern or practice of failure to comply with the terms of the Form ETA 9089.” Finally, the DOL could, under §656.32, take steps to revoke an approved labor certification if it is later found that the certification was not justified.  It is obvious that the issue of improper payments is one that must always be taken very seriously.