BALCA EN BANC ON WHETHER THE ADDITIONAL RECRUITMENT STEPS FOR PROFESSIONAL OCCUPATIONS MUST COMPLY WITH 656.17(f)

By Cora-Ann V. Pestaina

BALCA (Board of Alien Labor Certification Appeals) has been examining the issue of whether a  Certifying Officer (CO) may deny an Application for Permanent Employment Certification (ETA Form 9089) for a professional occupation if one of the additional recruitment steps does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f). In an en banc decision, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), BALCA held that the additional forms of recruitment do not have to comply with 20 C.F.R. § 656.17(f).

The filing of a labor certification with the Department of Labor (DOL) is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. If the application is for a professional occupation, the employer must conduct the recruitment steps within 6 months of filing the ETA Form 9089. Two of the steps, a job order and two print advertisements, are mandatory for all applications involving professional occupations, except applications for college or university teachers selected in a competitive selection and recruitment process as provided in § 656.18. Then, under 656.17(e)(1)(ii), the employer must also select three additional recruitment steps from the alternatives listed in paragraphs 656.17(e)(1)(ii)(A)-(J).

Section 656.17(f) lists the advertising requirements for advertisements placed in newspapers of general circulation or in professional journals. These requirements are that these ads must name the employer; direct applicants to report or send resumes, as appropriate for the occupation, to the employer; provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; not contain a wage rate lower than the prevailing wage rate; not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. The regulations do not address what content must be included in advertisements placed as additional recruitment steps.

In a previous blog, I briefly discussed BALCA’s decision in Matter of Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010) that the regulations at 656.17(f) govern all forms of advertisements including the additional recruitment steps. In that case, BALCA held that the advertisements must have the purpose and effect of appraising US workers of the job opportunity and in order for this to happen, the additional recruitment steps must contain sufficient information about the position.

In Symantec Corporation, 2011-PER-01856 (Feb. 11, 2014) the question was raised again. In this case, the employer filed an ETA Form 9089 for the position of “Financial Programmer Analyst.” The application was audited and the employer timely responded to the audit. The CO then denied the application because the employer’s advertisement placed on a job search website, as one of the three additional forms of recruitment required for professional occupations, contained a travel requirement not included in the ETA Form 9089 in violation of 656.17(f)(6) in that it contained job requirements or duties which exceeded the job requirements or duties listed on the ETA Form 9089. 

The employer filed a request for reconsideration and argued that the requirements of 656.17(f), upon which the CO relied in issuing the denial, are limited to advertisements placed in newspapers and professional journals, and do not apply to additional recruitment steps found in section 656.17(e)(1)(ii). The employer also cited the Preamble to the regulations, which states that the additional recruitment steps need only advertise the occupation involved in the application, and not the specific job opportunity. The employer also argued that its website advertisement was for multiple positions and the travel requirement expressed by the phrase “may be required to be available at various, unanticipated sites throughout the United States” did not create a travel requirement for all of the multiple open positions listed in the advertisement. The employer stressed that the use of the term “may” indicated that travel “might or might not be part of the job.”  

The CO denied the employer’s request for reconsideration and forwarded the case to BALCA arguing that US workers could consider the phrase travel “may be required” to be a term and condition of employment which could have deterred them from applying for the position.  A BALCA panel of three administrative law judges decided the case. They acknowledged Credit Suisse but noted that it was not an en banc decision and that BALCA, while it recognized, from a policy standpoint, that applying the content requirements to additional recruitment steps would further ensure that the job opportunity is open and available to US workers, does not have the authority to read into the regulations an additional requirement not stated therein. BALCA reversed the CO’s denial of the ETA Form 9089 and held that based on the plain language of the regulations and the regulatory history, the advertising content requirements of 656.17(f) do not apply to the additional recruitment steps. 

Unwilling to accept this, the CO petitioned for en banc review arguing that the panel’s holding conflicted with BALCA precedent and that en banc review was necessary to maintain uniformity in the Board’s decisions. BALCA granted the CO’s petition, vacated the panel’s decision, ordered a rehearing en banc, and permitted the parties to file supplemental briefs. BALCA en banc considered the specific question of whether advertisements placed to fulfill the additional recruitment steps must also comply with the detailed content requirements listed in 656.17(f).

  

BALCA en banc pointed out that the regulations explicitly identify three situations in which an employer must comply with the advertising requirements in 656.17(f):  (1) when an employer places an advertisement in a newspaper of general circulation or a professional journal in fulfillment of the mandatory recruitment for applications involving professional occupations, 656.17(e)(1)(i)(B)(3); (2) when an employer places an advertisement in a newspaper of general circulation in fulfillment of the mandatory recruitment for applications involving nonprofessional occupations, 20 C.F.R. § 656.17(e)(2)(ii)(D); and (3), when an employer posts a Notice of Filing announcing its intent to file an ETA Form 9089 under the basic labor certification process, § 656.10(d)(4). BALCA noted that in all three situations the regulations at 656.17(f) were cross-referenced and that no such cross reference exists in the regulations governing additional recruitment for professional occupations suggesting that the DOL did not intend to impose the content requirements on all types of advertisements.

BALCA en banc also referenced the Preamble to the PERM regulations. When the DOL proposed amending the labor market test to include three additional forms of recruitment, it received a number of comments opposing the proposal. Commenters were concerned that additional recruitment steps would be costly and unduly burdensome.  The DOL responded to these concerns and pointed out that the additional recruitment steps represent real world alternatives and only require employers to advertise for the occupation involved in the application rather than for the job opportunity involved in the application as is required for the newspaper advertisement. The Board pointed out that this clearly shows that the DOL was seeking to alleviate the burden of requiring three additional recruitment steps. BALCA en banc expressly disagreed with the conclusion in Credit Suisse and found that unambiguous regulations must be interpreted in a manner that is consistent with the common understanding of the terms used.

BALCA en banc further pointed out that if the CO does not believe that the existing recruitment regulations provide for an adequate test of the labor market then the recruitment regulations may be amended through a new notice and comment rulemaking process. But the CO may not disregard the plain language of the regulations for policy or other considerations. The en banc panel reversed the CO’s denial decision and directed the certification of Symantec’s ETA Form 9089.

For PERM practitioners, what is the practical take away lesson from Symantec? Does the fact that 656.17(f) does not apply to the additional forms of recruitment mean that these additional forms of recruitment can indeed contain job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089? Can the three additional forms of recruitment contain requirements that are more restrictive than the minimum requirements listed on the ETA Form 9089? In footnote No. 4 to its decision in Symantec BALCA en banc mentioned that the CO, in his argument, relied on East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc) where the Board concluded that an advertisement placed in fulfillment of an additional recruitment step must not include requirements not listed on the Form 9089, and stated that this conclusion is not binding upon the Symantec en banc Board as the issue was not raised or briefed by the parties, or necessary to the resolution of the appeal, and the Board did not analyze the scope of 656.17(f) in any depth. This could be seen as somewhat confusing to PERM practitioners. How can BALCA hold that 656.17(f) does not apply to the additional recruitment steps but then fail to address the East Tennessee en banc decision stating that the additional recruitment steps must abide by 656.17(e)? Which en banc decision governs? 

I think that PERM practitioners ought not to read too much into Symantec’s footnote No. 4. The en banc panel in Symantec points out that recruitment must be conducted in good faith and that the Board believed that the employer had indeed done this. The Board paid much attention to the fact that the employer’s additional recruitment was for multiple positions with varying requirements and that the employer had indicated the word “may” at the start of each sentence thereby indicating that not all of the requirements applied to each of the multiple positions. The Board stated that the CO does not have to certify an application if he has reason to believe that the employer’s recruitment efforts were not sufficient to warrant certification and the CO may instead exercise his broad discretion to order supervised recruitment under 20 C.F.R. §656.21. Accordingly, pursuant to the en banc decision in Symantec, while the three additional forms of recruitment do not have to comply with 656.17(f) and may be significantly broader or perhaps substantially briefer than the mandatory advertisements and the Notice of Filing, there nevertheless cannot be any information listed on these additional advertisements that is not included on the ETA Form 9089 as this would indicate bad faith on the part of the employer and possibly trigger supervised recruitment.

Viewing Symantec more broadly, BALCA clearly articulated that 656.17(f) was unambiguous, thus precluding the DOL from interpreting the regulation more broadly and insisting that the additional recruitment steps also conform to the requirement for the mandatory advertisements and the Notice of Filing. Pursuant to Auer v. Robbins, 519 U.S. 452 (1997), courts are required to give deference to an agency’s interpretation of its own ambiguous regulation unless such an interpretation is clearly erroneous. By holding that 656.17(f)’s plan language is unambiguous, the DOL will not be able to take cover under Auer by interpreting its regulations willy-nilly to the detriment of employers who recruit in good faith based on the plain language of a regulation but are then snared by the DOL’s different interpretation of its regulation. Auer was similarly criticized by Justice Scalia in his dissent in Decker v. Northwest Environmental Defense Center.   If the DOL desires that the additional recruitment steps conform to the requirements for the mandatory advertisements and Notice of Filing, then it ought to amend the regulation through notice and comment so that it clearly imposes such a requirement.

WHY WAS MY PERM SELECTED FOR AUDIT AND/OR SUPERVISED RECRUITMENT? #thatawfulmoment

Cora-Ann V. Pestaina

The filing of a labor certification is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known today as PERM, is to ensure that the employer has tested the US labor market for qualified and available US workers at the prevailing wage rate prior to filing an I-140 petition to classify the foreign national under either the employment second preference or the employment third preference. 

Foreign nationals (and their employers) often want to know why their PERM was selected for audit while PERMs filed on behalf of their colleagues were approved without audit. Many PERM practitioners are familiar with that awful moment when the PERM application for the foreign national who desperately needed a quick approval was issued a Notification of Supervised Recruitment signaling another year, or maybe even two!, on the scary PERM roller coaster. The mystery behind the PERM audit and supervised recruitment process has been no coincidence. The Department of Labor (DOL) has purposefully left employers in the dark about their selection process and frequently shifts their mechanisms all to protect against fraud. Solicitor of Labor Gregory F. Jacob once stated, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.”  

Nevertheless, through trial and error, certain triggers have been identifiable. We know that PERM applications can be selected for audit for reasons such as random selection; a foreign language requirement; a family relationship between the employer and the alien; an alien with ownership interest in the employer; layoffs in the same or related occupation; a combination of occupations; and more recently because the alien will telecommute; or the employer utilized an employee referral program. Some audits may also be chosen based upon the industry, the employer or the occupation. In recent times, the DOL has increased Supervised Recruitment for IT employers who will employ the foreign national in a roving or telecommuting position.

The DOL has now shed some much appreciated light on its audit and supervised recruitment selection mechanisms. On January 31, 2014, the DOL’s Office of Foreign Labor Certification (OFLC) published the following statement on its website (http://www.foreignlaborcert.doleta.gov/):

Section 212(a)(5)(A) of the Immigration and Nationality Act requires the Secretary to certify the admissibility of a foreign national for employment only when the Secretary can certify that the employment of that foreign worker will not adversely impact the wages and working conditions of US workers similarly employed, and that there is a job opportunity for which a US worker is unavailable. As the regulated community knows, the Department of Labor's Office of Foreign Labor Certification (OFLC) is responsible for maintaining the integrity and compliance of the primarily attestation-based PERM Program through the use of certain measures, including audit and supervised recruitment, under a broad integrity review authority. At the time of PERM's implementation, the Department stated that OFLC would select certain applications for audit, employing "auditing techniques that can be adjusted as necessary to maintain program integrity", as well as for quality control. 69 Fed. Reg. 77326, 77328 (Dec. 27, 2004). The Department noted at the time the need for changing audit criteria to focus integrity efforts on program abuse and adjust the audit mechanism as necessary as we gained program experience. 69 Fed. Reg. 77359. Finally, the Department reserved the process of supervised recruitment for a broad application "in any case in which the C[ertifying] O[fficer] deems it appropriate" as a reasonable quality control mechanism. 69 Fed. Reg. 77360, 77362. 

In response to a recent Freedom of Information Act (FOIA) request, we are releasing and making available to all of the regulated community the following documentation regarding the areas in the PERM Program that  have in the past warranted this closer examination. Click here to view the OFLC Audit Plan. These areas were deliberately chosen to ensure we are carrying out our statutory responsibilities while also recognizing the evolving nature of program integrity and quality control.

We hope the publication of this information assists filers, especially first-time filers, comply with the PERM Program's various requirements.

The OFLC Audit Plan presents Audit and Supervised Recruitment Tiers which specify the types of cases that will be targeted for Audit Review and tagged for Supervised Recruitment. As the DOL has indicated, this plan is being released in response to a FOIA request. Past practice informs us that the DOL would certainly have preferred to continue keeping us in the dark. The plan is dated March 19, 2013 and there is no way to know whether these audit and Supervised Recruitment tiers remain active or whether new tiers have since been added. However, this information does reveal the DOL's thinking with respect to audits and Supervised Recruitment and helps shed some light on the reasons why certain PERM applications are selected. According to the plan, there are eight (8) active tiers and (4) suspended tiers.  

The active audit tiers are as follows:

TIER ONE: PERMs will be audited if the primary requirement in Section H, Field 4 of the ETA Form 9089 is less than a Bachelor’s degree, e.g. “none”, “Associates” or “High School” AND the position is not classified under SOC Code 45-2093.00 - Farmworkers, Farm, Ranch, and Aquacultural Animals in Section F on the ETA Form 9089. 

TIER TWO: PERMs will be audited where the SOC Code in Section F, Field 2 on the ETA Form 9089 matches one or more of the trade related occupations contained in an attachment. 

The attachment was not published. However, this list would presumably include positions like Plumber, Electrician, Helpers-Carpenters or Helpers-Painters.  It is conceivable that these cases would be audited so that the employer can present its proof that an available US worker could not be found since it is typically easier to find U.S. workers in the trade occupations.

TIER FOUR:  PERMs will be audited where the employer is a public school listed on an attachment entitled PUBLIC SCHOOLS TO AUDIT. 

The attachment was not published.

TIER FIVE:  The DOL will audit 50% of PERMs where the offered position requires a degree but does not require any experience. This will be determined by the information presented in Section H, Field 4 and Section H, Field 6 of the ETA Form 9089. 

The logic behind this tier is confusing. It is possible for the employer to indicate a degree requirement in Section H.4; indicate “No” in Section H.6 and yet require experience for the offered position. Section H.6 asks “Is experience in the job offered required for the job?” Section H.10 asks “Is experience in an alternate occupation acceptable?” It is therefore possible for an employer to require no experience in the offered position but instead to require experience in an alternate occupation.  Employers commonly offer positions where experience in the job offered is not required but experience in a related position is required. For example, ABC, Inc. may require two years of experience as a Marketing Analyst for the offered position of Marketing Manager. Accordingly, the ABC, Inc. will indicate “NO” to the question in Section H.6 regarding whether experience in the job offered is required and then answer “YES” to the question in Section H.10 indicating that experience in an alternate occupation is acceptable. Also, in Section H.10-A, ABC, Inc. will indicate the number of months of experience required in the alternate occupation. This means that the experience listed in Section H.10-A is the primary experience requirement rather than an alternate requirement. In FAQs Round 10, the DOL, in the context of a question concerning the need to include the Kellogg language (language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc)) on the ETA Form 9089, confirmed that it is perfectly acceptable for an employer to require experience in an alternate occupation and not in the job offered.  But based on the information provided on the OFLC Audit Plan, there is a 50% chance that ABC, Inc.’s PERM application will trigger an audit for supposedly requiring a degree and no experience. 

Considering the additional processing time brought on by an audit (currently, in its audit queue, the DOL is only processing PERMs filed in October 2012!), the DOL ought to amend its review under this tier so as not to cause unfair processing delays for employers who actually do require a degree and experience for their offered positions. 

TIER TWELVE:  The DOL will audit 50% of cases where the employer has indicated on the ETA Form 9089 that they have had a layoff.  Specifically, if the employer has answered “YES” in Section I, Field 26 which asks “Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?”

The ETA Form 9089 goes on to ask, “If yes, were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought?”

Layoffs have long been considered an audit trigger. With the economy continuing to flounder and many employers still reducing their workforce in order to remain competitive, the DOL will continue to more closely examine the employer’s good faith recruitment of U.S. workers. The PERM regulations at 20 C.F.R. § 656.17(k)(1) state: If there has been a layoff by the employer 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.

The issue of layoffs is one that PERM practitioners ought to discuss with employers at the outset of the PERM process. If it has been determined that layoffs have indeed occurred (even just one) then the practitioner must go through the PERM regulatory analysis with the employer. 

The active Audit and Supervised Recruitment tiers are as follows:

TIER SEVEN:  A PERM may be tagged for audit and supervised recruitment if it was submitted after a denial within the same calendar year. Specifically, if the employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Denied _Cases table” AND  the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Denied _ Cases table.” 

This trigger is interesting because if a PERM is erroneously denied, the employer will usually have to decide whether to re-file the application or file a Request for Reconsideration with the Certifying Officer based on which process appears faster. Clearly, refiling may not always prove to be a faster route.  

TIER EIGHT: A PERM may be tagged for audit and supervised recruitment if it was re-submitted after it was withdrawn after audit. Specifically, if the Employer’s name in Section C, Field 1 is equal to one or more of the employer names listed in the DOL’s “Withdrawn_Cases table” AND the alien’s name in Section J, Field 1 is equal to one or more of the foreign worker names listed in the “Withdrawn_ Cases table” AND the “Audit Notification Date” in the “Withdrawn_ Cases table” is not null.

Employers may not be saving themselves any time by withdrawing and re-submitting an audited PERM but in fact, may be delaying the processing of the application by a year or more if it gets selected for Supervised Recruitment.

TIER ELEVEN: A PERM may be tagged for audit and supervised recruitment if it was not filed electronically and had to be manually entered by staff at the Atlanta National Processing Center. 

No employer should knowingly venture down this road.

The OFLC Audit Plan also lists some inactive tiers which are currently suspended and therefore are not triggers for audits or supervised recruitment. These include:

TIER THREE: H-1B Dependent Employers.  

Hopefully this remains where it belongs as a non-trigger.

TIER SIX: Requiring a degree and indicating that the alien’s Class of Admission as H-2A, H-2B or EWI (Entered Without Inspection).

TIER NINE: Employers who recently issued layoffs. 

The DOL has apparently moved away from auditing every PERM indicating a layoff to now auditing only 50% of PERMs which indicate a layoff. 

TIER TEN: Employer with a history of roving. 

Practitioners who routinely file PERMs involving roving employees have definitely noticed that the DOL has calmed down its onslaught of audits and Supervised Recruitment Notifications on these types of PERMs. And it didn’t come a moment too soon.

This OFLC Audit Plan can be extremely helpful. Rather than waiting until the employer or foreign national demands an explanation as to why a PERM was selected for audit or Supervised Recruitment, the above list of active and inactive tiers allows practitioners to better advise employers thereby making the PERM process a tad less fraught with danger. Just a tad though.

DO WE STILL NEED PERM LABOR CERTIFICATION? AN ANALYSIS OF THE MERITS-BASED POINTS SYSTEM IN BSEOIMA

By Gary Endelman and Cyrus D. Mehta

We continue to analyze the provisions of the Border Security, Economic Opportunity and Immigration Modernization Act of 2013, s. 744 (BSEOIMA), which seeks to bring about dramatic changes to the existing immigration system in the United States.  One of the most  transformative changes that BSEOIMA will bring, if enacted, is a merits-based points system. For previous blogs on BSEOIMA, we refer readers to Workable or Unworkable: The H-1B and L-1 Provisions in BSEOIMA, s. 744 and Some Preliminary Observations Regarding The Proposed Border Security, Economic Opportunity And Immigration Modernization Act. 

There will be a two track merits-based system under BSEOIMA.  The first track points-based merits system will have 120,000 to 250,000 merit-based visas. The second track non-points merits system applies to long term residents, and this track does not have a cap. By creating a points system, Congress has voted “No Confidence” in the labor certification program as a way to provide US employers with the talent they and the economy needs. This lack of confidence is also evident in other parts of BSEOIMA where STEM graduates with advanced degrees can be directly sponsored for green cards by employers without going through the arduous labor certification process. 

Perhaps, it has also dawned on Congress about the futility of the labor market test that is conducted on behalf of a foreign worker for green card sponsorship who is already hired by the employer.  A good faith test of the labor market even if conducted by a well-intentioned employer will likely fail, at least from the Department of Labor’s (DOL) view, if the foreign worker is already in the position. The statutory basis for labor certifications, which in its current form is known as PERM (Program Electronic Review Management), is provided in INA §212(a)(5) of the Immigration and Nationality Act ("INA"). Under INA §212(a)(5), an alien is deemed "inadmissible unless the Secretary of Labor" certifies, inter alia, that "there are not sufficient workers who are able, willing, qualified…and available at the time of application" among the U.S. workforce. Out of this simple mandate in the INA, the DOL has built a complex regulatory structure that has delegated to the employer to conduct a good faith text of the US labor market. While in the real world an employer selects the best workers based both on an objective and subjective set of criteria, the DOL requires employers to demonstrate that only minimally qualified workers are available for the position. The labor certification process neither compels nor incentivizes an employer to hire the best workers, but it also does not result in the creation of US jobs. If a minimally qualified worker applies for the position, all that happens is that the labor certification cannot be filed. 

The first track points-based system moves away radically from the labor certification system as it allows a foreign national to apply for permanent residency without a specific employer’s sponsorship. It  will take effect five years after the enactment of BSEOIMA. During  the first four years from enactment,  visas shall be made available to the backlogged EB-3 preferences. From the fifth year onwards,  50 % of visas shall be allocated to applicants who get the highest number of points under Tier 1. The remaining 50% of visas shall be allocated to applicants who get the highest number of points under Tier 2. 

Under Tier 1, points will be assigned as follows:

A. Education

• 15 points for a doctoral degree
• 10 points for a master’s degree
• 5 points for a bachelor’s degree from an institution of higher education in the US

B.    Employment Experience

No more than 20 points can be allocated as follows:

• 3 points for each year an alien has been lawfully employed in a zone 5 occupation
• 2 points for each year the alien has been lawfully employed in a zone 4 occupation

C. Employment Related To Education

An alien who is in the US and is employed full time or has an offer of full time employment in a field related to the alien’s education

• In a zone 5 occupation shall be allocated 10 points
• In a zone 4 occupation shall be allo0cated 8 points

D. Entrepreneurship

An alien who is an entrepreneur in a business that employs at least 2 employees in a zone 4 or zone 5 occupations shall be allocated 10 points

E. High Demand Occupation

An alien who is employed full-time or has an offer of full-time employment in a high demand 1 shall be allocated 10 points

F. Civic Involvement

An alien who has attested that he or she has engaged in  significant amount of community service shall be allocated 2 points

G. English Language

An alien who received a score of 80 or more on the Test of English as a Foreign Language, or an equivalent score on similar test, shall be allocated 10 points

H. Siblings and Married Sons and Daughters of Citizens

An alien who is the sibling of a citizen of the United States or who is more than 31 years of age and is the married son or married daughter of a citizen of the United States shall be allocated 10 points

I. Age

An alien who is:

• between 18 and 24 years of age shall be allocated 8 points
• between 25 and 32 years of age shall be allocated 6 points
• between 33 and 37 years of age shall be allocated 4 points

J. Country of Origin

An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

Under Tier 2, points will be assigned as follows:

A. Employment Experience

An alien shall be allocated 2 points for each year the alien has been lawfully employed in the US, for a total of not more than 20 points

B. Special Employment Criteria

An alien who is employed full-time, or has an offer of full-time employment

• in a high demand tier 2 occupation shall be allocated 10 points
• in a zone 1 occupation or zone 2 occupation shall be allocated 10 points

C. Caregiver

An alien who is or has been a primary caregiver shall be allocated 10 points

D. Exceptional Employment Record

An alien who has a record of exceptional employment shall be allocated 10 points

E. Civic Involvement

An alien who has demonstrated significant civil involvement shall be allocated 2 points

F. English Language

An alien who received a TOEFL score or an equivalent score on a similar test:

• 75 or more shall be allocated 10 points
• More than 54 and less than 75 shall be allocated 5 points

G. Siblings and Married Sons and Daughters of Citizens

An alien who is the sibling of a citizen of the US or is over the age of 31 and is the married son or married daughter of a citizen of the US shall be allocated 10 points

H. Age

An alien who is:

• Between 18 and 24 years of age shall be allocated 8 points
• Between 25 and 32 years of age shall be allocated 6 points
• Between 33 and 37 years of age shall be allocated 4 points

I.     Country of Origin

An alien who is a national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in the US in the previous 5 years shall be allocated 5 points.

There is also a second merit based track system that does not depend upon points beginning October 1, 2014. The second merits non-points system cleverly acts as a safety valve to reduce the existing backlogs in the system, and also ensures that we do not experience the same horrendous backlogs as we see under the existing system. People whose employment-based petitions and family-based petitions filed before the Act have been pending for more than 5 years will begin to become eligible for merit-based visas on that basis. Those who have been lawfully present for not less than 10 years will also be eligible for this non-points based side of the merit-based visa system. Registered Provisional Immigrants (RPIs) will be able to adjust status based on 10 years of lawful presence under this second merit non-points track system. 

Labor certification will undoubtedly survive even after BSEOIMA as beneficiaries under the EB-2 and EB-3 preferences still need an employer to obtain labor certification. Moreover, not everyone will be able to make it under the merits system, such as ethnic cooks for example, who may not even need to speak English but are still vital for the success of the restaurant.  The merits based points system will compliment labor certification if BSEOIMA is enacted. Congress, and probably DOL itself has realized, as the authors have previously noted in their prior article, that the very notion of a “good faith” recruitment seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in PERM do you win by losing. Unable to utilize real world recruitment standards, compelled to base evaluations upon the entirely artificial concept of “minimal qualifications” that does not exist outside the cordon sanitaire of 20 CFR §656, wedded to an inflexible job description that can never change regardless of an employer’s business needs or a worker’s evolving talents, and effectively prohibited from taking into consideration the very subjective character traits whose presence or absence is the most reliable predictor of effective job performance, the labor certification process is fundamentally at odds with the very economic system it allegedly seeks to serve. Justification of labor certification can extend no further than a test of the relevant job market. The DOL has also failed to provide jobs to U.S. workers even though it forces the employer to conduct elaborate tests of the labor market to retain the foreign national employee. Indeed, as presently conceived and administered by the DOL, labor certification is a job killer, hurting the employment prospects of the domestic work force by artificially preventing US employers, most especially emerging companies who are the engine of job creation, from treating the foreign national as an asset to be maximized in way that promotes job growth and strengthens the very economy on which we all depend. Indeed, no intellectually honest examination of the labor certification system can fail to detect the pervasive distrust of the entrepreneurial spirit and the very ethos of capitalism itself that the DOL brings to each phase of the PERM process.   

As the PERM labor certification appears to wither in BSEOIMA, giving way to a merits based points system, one can also learn from the Canadian points system where the points based system first started. A points based system may not necessarily be ideal. It could potentially encourage PhDs to win the highest points only to immigrate and not find jobs that are commensurate to their skills. Moreover, gaining the requisite points under specific criteria  are not an end unto themselves, and  that their effectiveness cannot be measured apart from the overall ability of the new immigrant to integrate into the economy and culture of the receiving nation . It  is this that ultimately will determine if the immigrant will be put into a position to succeed for themselves and their adopted home.

A Maclean’s article on the failure of the Canadian points system is revealing. According to a study conducted by the Organization for Economic Co-Operation and Development (OECD), only 60% of Canadian immigrants found jobs in their chosen areas of specialization compared to an OECD average of 71%; in matching up skills with employment, Canada ranked near the bottom, worse than Estonia, Italy, Spain and Greece.

The labor certification system seeks to  match the employer’s demand with the foreign national’s skills. Even here, however, it seems clear that PERM is not the best way for employers to express their interest in potential new hires. An independent assessment of language and credentials after which applicants can be placed in a pool for employers to draw from may be a promising third way between a free-standing points system (Canada) and immigration linked to specific job offers (USA). This “expression of interest” as applied in Australia and New Zealand avoids the frustrations of the Canadian approach and the economic illiteracy of PERM. 

The frustrations of the Canadian model suggest strongly that recruitment of even the most skilled knowledge workers cannot be divorced from domestic demand.  Not only has this produced  long waiting lines in Canada but the bias towards highly educate STEM professionals has deprived those industries which are booming, such as the oil fields in Alberta, of the blue collar talent that they so vitally need. According to a New York Times article that was written when the points based system was first proposed in the failed 2007 bill:

Part of the backlog in Canada can be traced to a provision in the Canadian system that allows highly skilled foreigners to apply to immigrate even if they  do not have a job offer. Similarly, the Senate bill would not require merit system applicants to have job offers in the United States , although it would grant additional points to those who do. Without an employment requirement , Canada has been deluged with applications.

According to a Huffington Post article, the chronic underemployment of advanced degree professionals in Canada underscores the need for employers  to play an active role in the immigration selection process. Since 2004, the Provincial Nominee Program (PNP) where provinces sponsor immigrants to designated job vacancies has expanded six fold. In Australia, 81% of immigrants obtained employment in their chosen disciplines within six months. A pure points system not anchored to what employers are looking for will produce lower income and higher unemployment. Once again, according to the Maclean’s article, a comparison with Canada is instructive:

In contrast to the Canadian experience, immigrants to the US have virtually closed the income gap with American-born workers. In 1980, US immigrants earned about 80 per cent of American-born workers, a gap that was roughly the same in Canada. By 2011, US immigrants earned 93% of native-born workers, while foreign-born college graduates now out-earn their American counterparts. During the last recession, the unemployment rate for foreign-born university grads in Canada topped out at 8.4 per cent in 2010( Among those who lived in the country less than 5 years, it was more than 14 per cent.) By comparison, unemployment among foreign-born graduates in the US was 4.4 per cent. 

BSEOIMA  keeps intact the traditional labor certification system under the employment-based second and third preferences, but also introduces a merits based points and non-points system. Within the merits-based points systems, plenty of points will be given to those who have jobs, offers of employment, and even US-based employment in the area of the alien’s education,  but it does not require the employer to file a “pointless” labor certification (no pun intended!). Under the non-points merits based visa system, long term residents waiting in the pipeline for a green card can avail of visas, thus creating a safety valve in case of backlogs. BSEOIMA thus provides several pathways for foreign nationals to obtain permanent residence without obsessively focusing on labor certification.  The goal we seek is not to replace PERM with a points system but to find an alternative to both that is ethical, transparent and realistic providing the economy with the human capital it needs to grow but doing so in a manner that allows immigrants to be productive while respecting the legitimate interests of US workers.

We now have a new world.  The merit based system in the bill provides this missing alternative. BSEOIMA is a transitional document and the number of options to obtain green card status without labor certification is bound to grow in future years.  The virtue of BSEOIMA is that it is hybrid system combining a points system with employer selection. This offers the best of both worlds, and we refer readers to a Migration Policy study that thoughtfully provides models for such hybrid systems. As the global competition for top talent in science and technology intensifies, in order for the United States to attract and retain the best and the brightest, PERM will increasingly be relegated to a less important place, although it may still be important for certain occupations who cannot avail of the new pathways to permanent residency. PERM will not disappear but it will never again enjoy the dominance of old.  It is this third way that will define America’s immigration policy in the 21st century.

RESUME REVIEW IN THE PERM PROCESS

by Cora-Ann V. Pestaina

Under the Immigration and Nationality Act, the Department of Labor (DOL) has a statutory responsibility to ensure that no foreign worker (or “alien”) is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.  INA § 212(a)(5)(A)(i).The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application.  Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith. 

Attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the permanent labor certification process, as described in 20 C.F.R. § 656.10 (b)(2)(i) and (ii). However, the DOL does not prohibit attorneys and agents from performing the analyses necessary to counsel their clients on legal questions that may arise with respect to this process.  The employer, and not the attorney or agent, must be the first to review an application for employment, and must determine whether a U.S. applicant’s qualifications meet the minimum requirements for the position, unless the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.

The DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. Yet, real world recruiting is at times impossible when the DOL sets forth “unreal” recruitment standards for employers! As an attorney who regularly counsels employers filing PERM labor certifications, I have found that one of the most difficult concepts for some employers to grasp is the resume review process and how it ought to be conducted in the PERM process.It’s hard for an employer to comprehend why they have to continue to assess an applicant who upon receipt of an e-mail from the employer, responded that he was “away” and would get back to the employer at some point in the following week; or an applicant who, when contacted, had no recollection that he had even applied for the job and needed to be informed of the job opportunity and the employer’s business; or an applicant who only listed “Software Engineer” as his experience leaving the employer unclear as to what skills he may possess. As reasons for rejection of applicants, employers sometimes state,“applicant is far too overqualified and I would never hire him for this position” or “these applicants went to foreign universities and I know they require sponsorship.” While these reasons may be acceptable in the employer’s normal consideration process, neither is a valid reason for rejection in the PERM process.Some employers become frustrated and push back. I find that I very often have to preface my comments with “We are not operating in the real world here…” 

Currently, and for some time now, every PERM audit letter requests verification of the unavailability of US workers. A request for resumes and applications for all US workers who applied for the job opportunity seems to have become the standard. The DOL specifically wants to review documentation of the employer’s contact with applicants and its assessment of the qualification of applicants.Yet, other than the expectation that the employer conduct “good faith” PERM recruitment, the DOL has not issued significant guidance with regard to resume review. But it is possible to glean some information from recent decisions by the Board of Alien Labor Certification Appeals (BALCA). In particular, two specific cases, involving Supervised Recruitment, shed some light on how the DOL expects employers to conduct resume reviews.

In Matter of Goldman Sachs & Co., 2011-PER-01064 (June. 8, 2012), the employer, indicated on the ETA Form 9089 that it would accept for the position of Financial Analyst, “any suitable combination of education, training and experience,” language well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc). During Supervised Recruitment, the employer submitted an expert opinion to the DOL detailing why thirty-five U.S. worker applicants had each been rejected without interview. As examples, BALCA highlighted one applicant who was rejected despite his “substantial academic business credentials” and because he did not possess “narrowly focused” experience necessary for the position and another applicant who the employer described as having “a long and varied career in accounting and financial reporting” but lacking in certain specific experience. The Certifying Officer (CO) denied the labor certification finding that the employer rejected U.S. workers for other than job related reasons. The CO specifically emphasized that the employer had indicated its willingness to accept “any suitable combination of education, training or experience” and had not taken the time to explore and evaluate the suitability of the applicants’ education, training or experience. The DOL cited 20 C.F.R. § 656.24(a)(2)(b) and stated that “where there is a reasonable possibility the applicant may meet the job requirements, it is incumbent on the employer to further investigate the U.S. applicant’s qualifications.” In its request for reconsideration, the employer argued, inter alia, that it has no duty to interview candidates who fail to show on their resumes that they satisfy the major job requirements. 

BALCA held that the CO did not question the employer’s business necessity for its job requirements, but instead questioned the fact that the employer rejected without interview applicants who appeared facially qualified for the position and did not address how they were unqualified even possessing a combination of education, training and experience. BALCA upheld the CO’s denial and cited Blessed Sacrament School, 96-INA-52, slip op. at 3 (Oct. 29, 1997) which held that where the applicant’s resume shows a broad range of experience, education and training that raises a reasonable possibility that the applicant is qualified even if the resume does not expressly state that he or she meets all the requirements, an employer bears the burden of further investigating the applicant’s credentials.

The takeaway from Goldman Sachs, and the concept that can be difficult to explain to employer clients, is that regardless of how convinced the employer may be that the U.S. worker applicant is unqualified for the position based only on his resume, if there is even a hint that the applicant may appear qualified to the untrained eye of a CO, it is worth the employer’s time to interview the applicant. During an interview, the employer can zero in on the specific requirements of the offered position and better assess the applicant’s qualifications. 

In JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16. 2012), the employer’s requirements included “Proficiency in Excel or Access,…understanding of databases (Lotus Notes and SharePoint), must have experience liaising with a technology team to develop/update product enhancement tool, databases and work flow engines…” The CO denied the case after concluding that U.S. worker applicants had a combination of education, training and experience equivalent to the employer’s job requirements and could acquire Access and SharePoint skills while on the job.

Rather than focusing, as it did in Goldman Sachs, on whether or not the employer had a duty to interview the U.S. workers to better assess their qualifications, the key issue for BALCA was whether or not the employer’s stated minimum requirements were established as a business necessity. BALCA stated that the employer had submitted a business necessity explanation in its Recruitment Report detailing why it requires an understanding of Lotus Notes and SharePoint and why job training was not feasible; the CO did not contend that these requirements were unduly restrictive; and the resumes of the U.S. worker applicants showed that they did not have the required skills. Based on this, BALCA held that the CO cannot dismiss the employer’s stated requirements and substitute his judgment for the employer’s. 

Confused much? The JP Morgan case emphasizes the importance of submitting a compelling business necessity argument in response to PERM audits. That way, if and when the employer rejects U.S. workers, the reason will be clear to the CO. But does the employer have to interview when the applicant’s resume does not list all the requirements or not? I think the clear answer is that the employer should always err on the side of interviewing the applicants. If there is even a hint of a question as to whether the applicant may appear qualified, the employer should interview. If the applicant failed to list the one technology required for the position but listed 5 similar technologies, the employer should interview. If the employer has stated that it will accept any combination of education, training and experience and the applicant has broadly listed his experience as simply “Software Engineer,” the employer should interview. While the DOL claims that the employer’s consideration of these applicants should resemble its normal consideration process, it just cannot. In normal consideration processes, the employer may utilize its judgment to reject any applicant deemed unqualified.  When it comes to the PERM process, the employer must go out of its way to demonstrate to the DOL that it has, in good faith, tried it’s best to find a U.S. worker to fill the offered position. In addition, the employer should take pains to explain in great detail, if audited, specifically why each applicant was not qualified for the offered position, providing evidence of any interviews and other communication with the applicants.  

BALCA CLARIFIES DOL’S POSITION ON PROOF OF PUBLICATION OF THE SWA JOB ORDER AND ADS PLACED BY PRIVATE EMPLOYMENT FIRMS UNDER PERM

By Cora-Ann V. Pestaina

As usual, BALCA (Board of Alien Labor Certification Appeals) decisions are very important for practitioners as they offer crucial insights into how to avoid some of the pitfalls in preparing and filing a labor certification application under Program Electronic Review Management (PERM) or into what arguments can be made in response to the unfortunate receipt of a PERM denial notice. BALCA recently issued some notable decisions.

DOCUMENTATION OF THE SWA JOB ORDER

While the Department of Labor (“DOL”) is obsessed about the employer presenting proof of publication of its recruitment, BALCA recently held, in an en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation.

The PERM regulations at 656.17(e)(2)(i) require an employer filing a PERM application to place a job order with the SWA serving the area of intended employment for a period of 30 days. That same section of the regulations also states, “[t]he start and end dates of the job order entered on the application serve as documentation of this step.” Pursuant to 656.10(f), all documentation supporting the PERM application must be retained for five years after filing the application. 656.17(a)(3) mandates that the employer must furnish “required supporting documentation” to the Certifying Officer (“CO”) if the PERM application is audited. A substantial failure by the employer to provide the required documentation will result in a denial of the PERM application. 656.20(b).

In A Cut Above Ceramic Tile, the employer attested, on an ETA Form 9089 filed on January 8, 2007, that, as part of its domestic recruitment efforts for the position of Tile Setter, it placed a job order with the SWA in the area of intended employment from July 13 to August 12, 2006. On June 11, 2009, the DOL issued an audit notification, which included the request for a copy of the job order placed with the SWA downloaded from the SWA internet job listing site; a copy of the job order provided by the SWA; or other proof of publication from the SWA containing the content of the job order. As part of its audit response, the employer included a copy of its completed Employer Job Order Information Sheet from VaEmploy.Com, the SWA for the state of Virginia. Citing 656.20(b) as authority, the CO denied the PERM application based on the employer’s failure to provide proof of publication of the SWA job order containing the content of the job order, as requested in the audit notification letter. The CO found that the employer’s submission of the Employer Job Order Information Sheet did not show the final content of the job order as run by the SWA.

The Employer filed a motion for reconsideration of the PERM denial arguing that the PERM regulations provide that the SWA job order is documented by the start and end dates entered on the ETA Form 9089. The employer also argued that it had tried to obtain proof of publication from the SWA but had been informed that proof of the publication of its job order had been deleted. The CO affirmed the denial and forwarded to case to BALCA which also affirmed the denial and held that the employer’s documentation only showed that the job order was placed for the required 30-day period but did not provide proof of its contents.

The Employer then filed a petition for en banc review which BALCA granted to resolve the issue of whether a CO may deny certification of a PERM application based on the employer’s failure to provide proof of the publication of the SWA job order. BALCA invited the American Immigration Lawyers Association (AILA) to file an amicus brief which it did. There was a conflict between BALCA panels because, in another case, Mandy Donuts Corp., 2009-PER-481 (Jan. 7, 2011), a BALCA panel compared the PERM regulations at 656.17(e)(2)(i) on placement of the job order and the regulations at 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C) on placement of a newspaper advertisement and pointed out that the PERM regulations for documentation of proof of newspaper advertisements specifically require the employer to provide copies of the newspaper pages in which the advertisement appeared or proof of publication furnished by the newspaper. The panel held that the PERM regulations only require “placement” of the job order for 30 days which is documented by the start and end dates entered on the PERM application.

The en banc panel in A Cut Above Ceramic Tile agreed with the Mandy Donuts panel and held that the distinction in the regulations is clear. The drafters of the regulation could easily have included a requirement that employers provide proof of publication of the SWA job order. In fact, the regulations governing the placement of a job order for the H-2B temporary nonagricultural labor certification program, also administered by the Employment and Training Administration (“ETA”) specifically require that the employer maintain a copy of the SWA job order or other proof of publication containing the text of the job order. 656.15(e)(1). The en banc panel reasoned that the ETA intentionally drafted the H-2B and the PERM SWA job orders regulations differently. In fact the ETA specifically stated in its response to comments regarding the audit process, that the employer is only required to provide the start and end date of the job order on the application to document the job order has been placed and the gathering of additional information on the job order from the SWA will not be necessary. See ETA, Final Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 69 Fed. Reg. 77326, 77359 (Dec. 24, 2004). Essentially, the CO does not have the power to request just any type of documentation and the employer’s application may only be denied under 656.20(b) when the absent documentation is required.

While this en banc decision may appear attractive, and is certainly useful when inheriting flawed cases, practitioners ought to continue the practice of printing copies of the job order to demonstrate good faith recruitment. The BALCA en banc panel made sure to comment, in note 5, that “the spirit and the context of the PERM regulations, which are grounded in attestations backed up by retained documentation to support attestations, strongly suggest that an employer should retain and be able to produce documentation about the content and dates of action on all elements of recruitment. We would anticipate that most employers recruiting in good faith will have retained documentation in some form to show the content of the job order, and if so be able to produce it.” However, it is now clear that failure to produce the SWA job order cannot be the sole basis for a PERM denial.

THE USE OF PRIVATE EMPLOYMENT FIRMS TO CONDUCT RECRUITMENT

Under 656.17(e)(1)(ii), when conducting recruitment for a professional position, the employer must conduct three additional recruitment steps to advertise the position. The employer may choose from ten forms of recruitment including the use of a private employment firm or placement agency. 656.17(e)(1)(ii)(F) states:

The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment forms for the occupation involved in the application.

In Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010), BALCA rejected the employer’s argument that 656.17(f), requiring that advertisements placed in newspapers of general circulation or in professional journals state the name of the employer and provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity, was not applicable to the additional recruitment steps for professional occupations, and held that the regulation in fact governs all forms of advertisement. However, not all the additional recruitment methods for professional positions readily lend themselves to these requirements. For instance, when recruiting through private employment firms, it makes no business sense to indicate the name of the employer because an applicant could then bypass the headhunter and apply directly to the employer. Indeed, in Credit Suisse Securities, BALCA acknowledged in note 7 that the requirements of 656.17(f) only applies to advertisements, and that it was not making a determination with respect to job fairs, on-campus recruiting, private employment firms and campus placement offices.

In World Agape Mission Church, 2010-PER-01117 (Mar. 23, 2012), the employer conducted recruitment for the professional position of “Pastor (Associate)” recruiting through a private employment agency as one of the three additional recruitment steps for professional positions. The CO issued an audit notification and, as part of its response to the audit notification, the employer submitted a letter from the private employment agency certifying that the agency had checked its database for any qualified applicants and had posted the job posting online. The job posting listed the job title, salary information, a job description, experience and education requirements, and that the position was full-time. The job posting was identifiable by a job number. The CO argued that the employer’s name must be included in an advertisement to ensure that the results of an employer’s test of the labor market are legitimate. The CO cited 656.17(f)(1), requiring that advertisements placed in newspapers of general circulation “name the employer.”

BALCA noted its decision in Credit Suisse Securities but held that an advertisement placed by a private employment agency is different than one placed directly by the employer. BALCA referenced its decision in HSB Solomon, 2011-PER-2599 (Oct.25, 2011) that 656.17(f) does not apply to advertisements placed by private employment firms. However, World Agape Mission Church makes it clear that the employer still has a duty to recruit in good faith and to make the job opportunity clearly open to all U.S. workers even when using a private employment agency. Of particular note was the fact that the job posting provided applicants with sufficient information like the job title, job duties, and education/experience requirements, and even if it did not list the name of the employer, it listed a job number which matched the job number listed in the letter from the employment agency certifying its recruitment. This allowed the CO to match the listing to the agency’s advertisement even without the inclusion of the employer’s name in the posting.

SUPERVISED RECRUITMENT

As the supervised recruitment train keeps barreling through, we have to keep on the lookout for any BALCA decisions to help guide us through the process. BALCA recently issued two decisions worth reading.

In Kennametal, Inc., 2010-PER-01512 (Mar. 27, 2012), BALCA held that the employer had improperly rejected U.S. workers because it did not consider the possibility that certain applicants could become qualified after a reasonable period of on-the-job training. But most interestingly, BALCA held that the employer’s rejection of applicants for not possessing the requisite bachelor’s degree was unlawful and specifically listed examples of applicants who had an associates’ degree and 10 to 24 years of experience. BALCA held that because the employer indicated in its advertisements that it would “accept a combination of education, training and experience” (well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc), the employer should have considered these applicants and interviewed them to further evaluate their skills. This is particularly interesting in light of the fact that the DOL routinely requests that employers list the Kellogg language in the supervised recruitment advertisements even where it is not applicable. Now, employers have to be alert to the fact that the DOL could then use that same Kellogg language against them to argue that they unlawfully rejected U.S. workers.

In JP Morgan Chase & Co, 2011-PER-00635, BALCA upheld the CO’s denial of the PERM application under supervised recruitment because the employer did not list the addresses of the U.S. worker applicants in the body of its recruitment report as required under the supervised recruitment regulations at 656.21(e)(3) despite the fact that the employer had submitted copies of all the resumes which listed the U.S. addresses of the applicants.

THE SUPERVISED RECRUITMENT ROLLER COASTER -THE RIDE THUS FAR

By Cora-AnnV. Pestaina

You filed a spotless labor certification. It was a perfect case, a perfect employer and a perfect employee with the perfect qualifications. Yet, one day, there it was in the mail. The dreaded Notification of Supervised Recruitment ("NSR"). The Department of Labor ("DOL") had long advised to expect increased Supervised Recruitment. You knew the possibility of receiving an NSR existed and had advised your client accordingly. Still, its arrival was disappointing. Initial indignation ("How dare they?") gave way to resignation ("Oh well, that's just the way the cookie crumbles.") to actual enthusiasm ("Hey, this will give me chance to finally see what this crazy process is about!"). And so, assuring your client that all will be well, you took their hand and boarded the Supervised Recruitment roller coaster.

The DOL is authorized, under 20 C.F.R. § 656.21, to conduct Supervised Recruitment.  The article by Cyrus Mehta, Maggie Murphy and David Ware, Supervised  Recruitments in Tough Economic Times - Practical Tips For Compliance quoted Solicitor of Labor Gregory F. Jacob who said, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.” This article also indicated that the DOL will target employers in industries with publicized layoffs in specific geographic locations, e.g. employers in the financial industry in New York City. The DOL may also target employers in the computer and auto industries. The DOL has begun to make good on its threat to increase Supervised Recruitment and like most practitioners, I am currently in the middle of the Supervised Recruitment process, with no telling where this ride will take me next. Based on experiences thus far, here is some of what can be expected.

Requests for extension may/may not be granted

The NSR describes the steps involved in the Supervised Recruitment process and gives the employer 30 calendar days, from the date of the NSR, to submit a draft advertisement and any additional information requested in the NSR. The NSR also indicates that the employer may submit a timely request for one extension of the 30-day timeframe by e-mailing the DOL at SR.processing@dol.gov. A good reason for an extension would be that you are a new attorney of record. However, the employer cannot rely on the mere timely submission of an extension request. The request must be officially granted.  The problem is that the DOL may respond within 1-2 days; may take longer than a week to respond; or may not respond! Moreover, there is also no guarantee that the response will be favorable. Because of this uncertainty, it is best to begin to prepare a response to the NSR which can be timely filed in the event that no response from the DOL has been received.

The requirements for the advertisement are different

The NSR lists the required content for advertisements. One immediately becomes aware that the rules under Supervised Recruitment are different from the PERM rules. Under Supervised Recruitment, the advertisement must contain the job title; the job duties; the work schedule; the education and experience requirements; the geographic location(s) of employment; the Kellogg language, “Any suitable combination of education, training or experience is acceptable;” the offered wage; and a list of any training to be provided to employees. The advertisement must direct applicants to submit their applications to the DOL's Recruitment and Employment Office.  

The NSR may also request additional documentation. For example, the DOL may require the employer to "explain any limitations on training...with regard to [the offered] position." The DOL does not clarify what is meant by this request but asks that the employer note that a worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.

Requests for additional information

Once the draft advertisement has been submitted, the DOL may request additional information. For example, a draft ad requesting that applicants “must be willing to work in unanticipated locations across the US” may elicit a request that the employer establish the business necessity for this requirement. The employer will be given 30 calendar days from the date of the request within which to submit its response.

Making changes to the ad after it has been submitted

Once the draft advertisement has been submitted, it may be possible to make amendments to the ad by e-mailing the DOL. For instance, in one case, after the draft advertisement had been submitted to the DOL, the employer asked whether it could indicate that there were multiple, identical positions available within the company. The DOL responded favorably to an e-mail inquiry requiring only that the specific number of positions be indicated. However, it may not be possible to make a drastic amendment to the advertisement from what was stated in the PERM form.

Issues with recruitment

Once the employer’s draft advertisement has been approved, the DOL will issue its Recruitment Instructions.  The Recruitment Instructions are specific instructions informing the employer where and when the advertisement must run. Again, here, the recruitment process will differ from what is required under PERM.  For example, for a professional position, the DOL may require that a 30-day job order be placed with the State Workforce Agency (SWA); that the ad run in a specific major newspaper and online for 3 consecutive days including a Sunday; that the ad run on the employer’s website for 7 consecutive days; that the ad run on 2 other websites for 7 consecutive days; and that the employer post the Notice of Filing for 10 consecutive business days.  All of the recruitment must commence within 15 days of the date of the Recruitment Instructions notification.

The problem is, sometimes, it takes several days for the Recruitment Instructions notification to arrive in the mail. By the time the instructions arrive, the employer may only have 10 days left of the initial 15 days. Then, the employer may encounter problems with some of the recruitment steps. For instance, depending on the particular SWA, it may take up to 7 days to post the job order. To make matters worse, some SWAs may edit the posting (e.g. directing that applications be sent to the employer’s headquarters).  Some SWAs are notorious for randomly editing the job order even after it has been posted for a few days.  The word “sabotage” inevitably comes to mind but I digress. It is important to constantly and painstakingly check the contents of the job order. 

Sometimes, the DOL will instruct that the advertisement be placed in the most expensive newspaper of general circulation. For instance, the DOL may instruct that an advertisement for a professional position in Edison, New Jersey, run for 3 consecutive days including a Sunday in the New York Times when the New Jersey Star Ledger is a perfectly appropriate and less expensive newspaper. Considering the extensive requirements for the advertisement (discussed above), it may cost several thousand dollars to run the ad in the newspaper.  Of course, the employer may e-mail the DOL to request a change of newspaper. But again, the DOL may respond in 1-2 days, may take a long time to respond or may never respond. Oftentimes, the employer is forced to simply pay the advertising fees.

The employer is required to e-mail a recruitment schedule to the DOL, no later than 15 days after the last placed advertisement.

Resumes

The DOL will not wait to gather any number of resumes but will forward them to the employer as they are received. In some cases, the resumes will only be sent to the attorney and in other cases, the attorney will only be cc’d on the communication.  If an attorney receives a resume, it is important that this be forwarded to the employer immediately upon receipt so that it can be appropriately evaluated. Also, it is important that the attorney not evaluate the resume before the employer does. Remember the DOL insists that the employer first consider a US worker applicant and not the attorney.  Employers are also required to consider any resumes that may be sent directly to them.

Expected next steps are that the DOL will issue its request for the final written Recruitment Report and will issue a determination whether to grant or deny the application. 

I am sure that practitioners can provide countless anecdotes on their experiences with Supervised Recruitment. The only thing I think we can count on is that Supervised Recruitment is not going away. Stay tuned for more highlights from this journey that I have just embarked upon.