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Happy 10th Anniversary PERM!
At the tenth year anniversary of PERM, most would agree that the system currently utilized to comply with the labor market test requirement of employment based permanent residence sponsorship is not the process that was described to stakeholders a decade ago. Slower than portrayed, more inefficient than expected and less agile than anticipated, PERM today is like a tenth year marriage in which neither party clearly remembers anymore why they thought this change would be such a good idea! In no area of the PERM is this more apparent than in the recruitment stage. The rules pertaining to the recruitment phase are still fraught with traps for the unwary, such as uncertainty and shifting interpretation on advertisement content, acceptable recruitment venues, and what evidence must be submitted in response to an audit to avoid a PERM denial. The latest PERM audits, denials, Board of Alien Labor Certification Appeals (BALCA) decisions, and U.S. Department of Labor (DOL) FAQs reveal some of the recent trends in recruitment interpretation and provide practice pointers for avoiding PERM’s pitfalls.
By way of background, before filing a PERM application, an employer must test the labor market to ensure there are no qualified, willing, available U.S. workers to fill the permanent job opportunity. Regulations dictate that recruitment ads must be specific enough to apprise applicants of the job opportunity, and should be consistent with what is listed on the ETA Form
9089.1 However, the regulations are less than clear with respect to what content must be included and not be included in various recruitment efforts, what recruitment venues are acceptable, and what type of documentation must be provided in an audit. Below is a discussion of some of the
1 20 CFR §656.17(f)(6).
2 2015 AILA Immigration Practice Pointers
recent shifts in agency interpretation and common pitfalls to guide practitioners and employers in the recruitment stage.
An employer must recruit under the standards for professional occupations if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is customarily required. Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Where an employer is uncertain whether an occupation is considered professional or not, the DOL advises the employer to conduct recruitment for a professional
Recent decisions have addressed what must appear in professional recruitment advertisements. In an en banc ruling in Matter of Symantec,3 BALCA held that, based on the plain language of the regulations and regulatory history, advertising content requirements for ads placed in newspapers of general circulation or professional journals 4 do not apply to additional professional recruitment steps. As a best practice, it is nevertheless important to ensure that information contained in the additional forms of recruitment comports with what is provided on the ETA Form 9089. Failure to do so could indicate a lack of “good faith” recruitment efforts on the part of the employer.
While professional recruitment ads need not meet the content requirements of 20 CFR
§656.17(f)(6), BALCA has held that an advertisement with incorrect information about the job opportunity is not a true test of the labor market. In Matter of Starry Associates,5 the employer’s advertisement on a job search website contained an experience requirement of “7+ to 10 years,” significantly exceeding the six-month experience requirement listed in its ETA 9089. BALCA concluded that it was the employer’s responsibility to note and correct errors in advertisements, and that the ad may have discouraged U.S. applicants from applying because they thought they were not qualified.6
2 PERM FAQs are available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm.
3 2011-PER-01856 (July 30, 2014) (en banc), AILA InfoNet Doc. No. 14080102.
4 Per 20 CFR §656.17(f), advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must: (1) name the employer; (2) direct applicants to report or send resumes, as appropriate for the occupation, to the employer; (3) provide a description of
the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; (4)
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; (5) not contain a wage rate lower than the prevailing wage rate; (6) not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and (7) not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.
5 2012-PER-00489 (BALCA Nov. 28, 2014).
6 Id.; see also Matter of Decisive Environment, 2012-PER-00506 (BALCA Dec. 2, 2014) (affirming CO’s denial where the employer’s job order mistakenly contained an experience requirement that far exceeded that listed in the
ETA 9089, determining that listing requirements which exceeded the position’s actual requirements may preclude
U.S. workers from applying for the job); Matter of Gelato Cafe, LLC, 2012-PER-00471 (BALCA Nov. 20, 2014) (finding the educational requirement included in the NOF was greater than that listed in the employer’s ETA Form
Happy 10th Anniversary PERM! 3
State Workforce Agency (SWA) Job Order
One of the requirements of PERM recruitment is for employers to list the job opportunity with the State Workforce Agency (SWA) in the state where the job will be located. In the past few years, BALCA decisions have been inconsistent as to whether the same content requirements for newspaper advertisements, professional journals, and notices of filing apply to job orders. 7
However, the most recent BALCA cases suggest that content requirements related to ads placed in newspapers of general circulation and professional journals do not apply to job orders.8
Per A Cut Above Ceramic Tile,9 dates of the SWA job order, as attested on the ETA 9089, serve as sufficient documentation that the job order ran. Thus, an audit response may omit documentation of the job order, and PERM denials premised on failure to provide proof of job order are improper. However, a PERM can be denied for job order deficiencies. As DOL can obtain job orders from SWAs, practitioners should ensure that they are completely accurate. If the position includes a travel requirement, this should be listed in the job order as well as the ETA 9089. Further, any terms of employment listed in the job order cannot be less favorable than that listed in the ETA 9089.10 If a salary is listed, it should be above the prevailing wage and match the actual wage range listed in the ETA 9089. As a practical matter, it is advisable to avoid drop-down menus where possible and to use free text fields to list additional information.
Notice of Filing
Though technically not a recruitment step, employers must place a Notice of Filing at the job location as part of the PERM process. Content requirements for newspaper advertisements and professional journals apply to the NOF.11 Also, the NOF must contain a statement that the notice
9089, and therefore, did not “provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought” as required by 20 CFR §656.10(d)(4)); Matter of Pixar, AILA InfoNet Doc. No 12040345 (finding that incorrect requirements listed in web posting might have discouraged applicants who may not have applied on the assumption that they were overqualified).
7 Compare Matter of Chabad Lubavitch Center, published on AILA InfoNet at Doc. No. 13073040 (posted Jul. 29
2013) (holding that the requirements are different) with Matter of IBM Corp., published on AILA InfoNet at Doc. No. 130829412011 (posted Aug. 27, 2013) (finding the requirements are the same for professional positions).
8 Matter of Special Lotus, Inc., 2011-PER-02312 (BALCA Jan. 13, 2015) (reversing denial where job order did not direct applicants to submit their resumes to the employer); Matter of Cape Advisors, Inc., 2011-PER-02882
(BALCA Dec. 11, 2014) (reversing CO’s denial where job order and advertisement placed by a private employment
firm did not direct applicants to submit resumes to the Employer).
9 2010-PER-00224 (BALCA 2012) (en banc).
10 Matter of Philip Dutton Eventing, LLC, 2012-PER-00497 (BALCA Nov. 24, 2014) (upholding denial where in an audit response, the employer indicated that no-cost, on-site housing was available to employees, but did not note the
availability of housing in the job order, advertisements or notice of filing); see also Matter of Hrok, LLC, 2012-PER-
00294 (BALCA Jan. 23, 2015) (affirming CO’s denial where employer listed a wage range of $50,000 to $60,000 on the ETA Form 9089 but listed a wage of $49,670 on the job order); see also Matter of Windmoeller Hoelscher Corporation, 2012-PER-00273 (BALCA Aug. 26, 2014).
11 Matter of USA Wool, Inc., 2012-PER-00055 (BALCA Aug. 28, 2014) (en banc) and Matter of Tera Technologies, Inc., 2011-PER-02541 (BALCA Aug. 28, 2014) (en banc) (holding that the omission of the employer’s name from a
PERM notice of filing is fatal to the PERM application); Matter of Wilco Enterprises, Inc., 2011-PER-01919
4 2015 AILA Immigration Practice Pointers
is being provided as a result of the filing of a labor certification application in connection with the job opportunity.12
Sunday Newspaper Advertisements
Selecting a newspaper of general circulation remains an area of uncertainty for employers and practitioners. Employers must be able to document that the newspaper or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity.13
According to DOL FAQs published in November 2014, there is no published list of acceptable publications, and DOL expects that most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers that are most likely to bring responses from able, willing, qualified, and available U.S. workers.14 This guidance, while recent, is outdated in light of the fact that many employers no longer use newspapers as part of their normal recruitment. In
listing the name of the newspaper of general circulation on the ETA 9089, practitioners should be careful to list the exact name of the publication; listing the name of a media group or company that owns the publication is not sufficient.15
BALCA has recently held that the regulations do not prohibit an employer from using one newspaper to satisfy multiple recruitment steps, provided that the newspaper satisfies both categories. 16 Nevertheless, if an employer seeks to use one newspaper to satisfy multiple recruitment steps, practitioners should carefully document that the newspaper meets both recruitment criteria. A more conservative practice would be to publish the Sunday ads and local ads in two different newspapers.
DEFECTS IN RECRUITMENT DOCUMENTATION
Documenting Recruitment Efforts
In the event of an audit, employers must submit sufficient documentation of professional recruitment efforts undertaken. As noted above, employers are not required to submit documentation of SWA job orders in their audit responses, and providing such documentation can facilitate denial if any deficiencies exist in the job order.
For ads posted on an employer’s website, evidence of posting may include dated copies of pages from its website or sworn affidavits evidencing the placement of the website ad. The mere
(BALCA Jan. 13, 2015) (finding that a NOF that lists the name of the business owner or authorized representative is insufficient.).
12 Matter of Academy Awning, 2012-PER-00462 (BALCA Nov. 26, 2014) (finding that without the required language, employees received no notice of the employer’s PERM filing and thus the purpose of the NOF
requirement was frustrated).
13 20 CFR 656.17(e)(1)(i)(B)(1).
14 PERM FAQs are available at www.foreignlaborcert.doleta.gov/faqsanswers.cfm.
15 Matter of Symyx Solutions, 2012-PER-00463 (BALCA Nov. 26, 2014) (upholding a PERM denial where the employer listed the Bay Area News Group (Group) as the newspaper of general circulation in its ETA 9089, where
the ads actually ran in the San Jose Mercury News (SJMN), which is owned by the Group).
16 Matter of Delta Search Labs, 2011-PER-02871 (April 24, 2014), published on AILA InfoNet at Doc. No.
submission of undated printouts of a website ad,17 a copy of the advertised text with a note describing the posting,18 or an email referencing the job ad posting are not considered sufficient evidence. 19 To document the use of an employee referral program (ERP) as an additional recruitment step, employers must ensure that the documentation details the incentives offered to employees.20 For newspaper advertisements, the date of publication must be clearly visible on the tear sheets submitted with an audit response.21 Note, in addition to documentation verifying recruitment steps, an audit response must include a detailed and signed recruitment report that describes the recruitment steps undertaken.22
Documenting Infeasibility to Train and Lawful Reasons for Disqualification
In 2014, DOL reinstated its practice of requesting employers demonstrate that rejected applicants’ skills cannot be attained within a reasonable period of on the job training in all audits. Employers have the burden, in essence, to prove a negative in response to an audit—i.e., why it is infeasible to train someone on the job. This may be demonstrated through written assertions that are reasonably specific, indicate their sources or bases, and demonstrate time-sensitivity. Practitioners should counsel employers to document infeasibility to train with great specificity.23
Recently, practitioners reported receiving denials in some cases where Kellogg language (indicating that the employer would accept “any suitable combination of education, training, or experience to qualify for the position”) was included and candidates whose resumes indicated they possessed significant experience and the requisite education but were missing required skills were disqualified without interview. Notably, DOL indicated a duty to inquire further into a candidate’s qualifications is more likely to arise where Kellogg language is present. In determining whether to reject U.S. applicants, employers should base their decisions on substantive, lawful, job related criteria listed in the ETA 9089. An employer’s bare statement that the U.S. applicant is not qualified would not pass muster with DOL.24
17 Matter of ERP Corp., 2012-PER-00493 (BALCA Nov. 26, 2014) (finding employer failed to submit sufficient documentation of a website ad where in its audit response, it submitted an undated printout of the website ad, with no further documentation of the date the ad was posted).
18 Matter of IBM Corporation, 2012-PER-00251 (BALCA Aug. 25, 2014) (affirming CO’s denial where employer failed to provide dated copies of pages from its website or any sworn affidavits of such a posting evidencing the placement of the website ad, but rather submitted the advertised text with a note stating that “a copy of this notice
was posted on IBM.com,” which was signed by a member of the company’s Immigration Operations department).
19 Matter of Bencor Corporation of America Foundation, 2012-PER-00415 (BALCA Nov. 26, 2014) (affirming
PERM denial, holding that an email from one of the employer’s employees to another, asking how long a job advertisement needed to be posted on the employer’s website, was insufficient to document the dates and duration of the website ad).
20 Matter of Softpros, Inc., 2012-PER-00935 (BALCA Jan. 8, 2015); see also Matter of Summit Helicopters, Inc.,
2011-PER-02300 (BALCA Jan. 13, 2015).
21 Matter of RN Middleton Residential Care Home, 2012-PER-00500 (BALCA Nov. 24, 2014) (affirming denial where the employer provided copies of its newspaper advertisements, but one ad had its date of publication cut off).
22 Simply Soup Ltd., 2012-PER-940 (Jan. 13, 2015) (en banc) (finding that recruitment report must describe the recruitment steps undertaken, even if the recruitment steps could be easily verified by review of the documentary
23 Matter of Kentrox, 2012-PER-0038 (May 22, 2014), published on AILA InfoNet at Doc. No. 1405274.
24 Matter of Federal Home Loan Mortgage Corp., 2011-PER-02902 (February 10, 2014), published on AILA InfoNet at Doc. No. 14021144 (holding that although an employer may not reject a U.S. applicant for reasons other
THE ROLE OF THE ATTORNEY IN THE RECRUITMENT PROCESS
While the rules pertaining to the proper role of immigration attorneys in the recruitment stage of PERM are more settled than the topics described above, it is worthwhile to review the challenging ethical considerations arising when representing employers in labor certification matters, particularly with respect to the evaluation of U.S. worker applicants during PERM recruitment. The Department of Labor’s regulations, 25 FAQs, 26 and BALCA case law 27 all suggest inherent suspicion toward attorney involvement in PERM. However, given that PERM is an exacting process and unforgiving of mistakes, employers reasonably look to counsel to navigate the PERM process and comply with its requirements. The following is a summary of current guidance and practice pointers on the permissible role of attorneys in PERM.
DOL regulations clearly recognize the employer’s right to counsel “throughout the labor certification process.” 28 In its most recent guidance on the subject, DOL indicated that it appreciates the legitimate role attorneys and agents play in the PERM process and respects “the right of employers to consult with their attorney(s) or agent(s) during that process to ensure that they are complying with all applicable legal requirements.”29 Nevertheless, there is a limit on the type of assistance attorneys may offer. In particular, DOL regulations restrict the scope of permissible activities for attorneys in the context of PERM recruitment.
The regulations observe that attorney involvement in the interviewing or consideration of U.S. worker applicants is contrary to the best interests of U.S. workers, and specifically prohibit the foreign national’s attorney from interviewing or considering U.S. workers for the job offered.30
Though the regulations do not expressly prohibit an employer’s attorney from interviewing or considering U.S. worker applicants during PERM recruitment, DOL’s guidance on the topic
than those listed on the employer’s ETA 9089, the employer was justified in rejecting the laid-off U.S. worker on the grounds that the worker lacked the requisite experience and skill based on the face of the worker’s resume and the requirements of ETA 9089). For additional guidance on proper notification and consideration of laid-off U.S. workers for PERM applications, practitioners should review the new FAQs, published on DOL’s website in February 2014.
25 20 C.F.R. §§ 656 et. seq.
26 See OFLC Frequently Asked Questions and Answers on the PERM Program (updated Jan. 16, 2015), available at
27 BALCA decisions concerning labor certification are available at http://www.oalj.dol.gov/libina.htm.
28 20 CFR §656.10(b)(1) (emphasis added).
29 “Restatement of PERM Program Guidance Bulletin on the Clarification of Scope and Consideration Rule in 20
CFR §656.10(b)(2)” (Aug. 29, 2008), AILA InfoNet Doc. No. 08110666, also available at
30 20 CFR §656.10(b)(2)(i) and (ii) states: “It is contrary to the best interests of U.S. workers to have the alien and/or agents or attorneys for either the employer or the alien participate in interviewing or considering U.S. workers for the job offered the alien. As the beneficiary of a labor certification application, the alien can not represent the best
interests of U.S. workers in the job opportunity. The alien's agent and/or attorney can not represent the alien
effectively and at the same time truly be seeking U.S. workers for the job opportunity. Therefore, the alien and/or the alien's agent and/or attorney may not interview or consider U.S. workers for the job offered to the alien, unless the agent and/or attorney is the employer's representative, as described in paragraph (b)(2)(ii) of this section. 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.”
clarifies that, with the exception of the rare scenario in which an employer’s attorney is the person who typically interviews or considers applicants for job opportunities, attorneys representing either employers or foreign nationals should not participate in interviewing or considering U.S. worker applicants during PERM recruitment.31
The ban on attorney participation in interviewing U.S. worker applicants, including contacting and inviting applicants to interviews, is longstanding 32 and generally accepted. It is the prohibition against attorney participation in the applicant review process that has only become clearer in recent years, with the DOL ultimately retreating from interpretations that arguably violated employers’ right to counsel.
In June 2008, DOL announced as official policy that it had the authority to “specifically prohibit an employer’s immigration attorney or agent from participating in considering the qualifications of U.S. workers,” and further provided that “there is no legitimate reason to consult with immigration attorneys before hiring apparently qualified U.S. workers.”33 In essence, DOL’s initial position implied that employers had no right to consult with counsel when considering U.S. worker applicants in PERM recruitment.34 This statement was followed by an evolving series of guidance memos restricting lawyers’ ability to advise clients during PERM recruitment.35
The DOL’s statement generated immediate and widespread criticism in the immigration law community. In response, DOL revised its previous guidance and published a final guidance memo on August 29, 2008, recognizing employers’ right to counsel during PERM recruitment and providing the following discussion:
By prohibiting attorneys, agents, and foreign workers 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), the Department does not thereby 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
32 See e.g. Matter of Sharon Lim Lau, 90-INA-103 (BALCA 1992); Matter of K&S Sportswear, 91-INA-52 (BALCA 1992); Matter of Alsuna’s Caribbean American Café, 96-INA-0268 (BALCA 1999).
34 See “PERMutations: The Department of Labor's Evolving Perspective on the Role of Attorneys in the Labor
Certification Process,” Immigration & Nationality Law Handbook (AILA 2008–09 Ed).
35 On June 4, 2008, DOL issued an “Information Paper” containing FAQs clarifying that although attorneys may provide “general advice” to employers about the meaning of the term “qualified” under the regulations, they were
prohibited from providing from providing this advice in the context of an applicant’s qualifications. On June 13,
2008, the DOL issued "PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20
CFR §656.10(b)(2).” This “guidance” effectively eliminated employer’s ability to consult with counsel about whether a PERM application may continue after making a preliminary evaluation that an applicant may be qualified. These documents no longer exist on DOL’s website, but may be found in AILA’s The David Stanton Manual on
Labor Certification, Fourth Edition (AILA 2008), at 774 and 776–77.
8 2015 AILA Immigration Practice Pointers
performs this function for positions for which labor certifications are not filed. By requiring that initial reviews of and final determinations on all applications are made by the employer, the Department seeks to ensure that the consideration process is as close to the employer’s non-immigration-related hiring process as possible and that U.S. workers receive full and fair consideration by the employer for the job. Attorneys (and, to the extent it is consistent with state rules governing the practice of law, agents) may, however, provide advice throughout the consideration process on any and all legal
questions concerning compliance with governing statutes, regulations, and policies.36
The practical implication of this guidance is that counsel may advise employers during applicant review to help them comply with the regulations, but the employer must be the first to review a U.S. worker applicant’s resume.
Now, nearly seven years later, the law on attorney involvement in PERM recruitment appears well settled and has not been the source of significant audits or PERM denials. Given the plethora of articles and advisories written on this topic, immigration practitioners appear to have developed a set of industry best practices to avoid impermissible attorney involvement in PERM recruitment.37 Specifically, DOL guidance and best practices indicate that attorneys may conduct the following activities:
Receive resumes and organize resumes for review by the employer without making qualitative comments on them or withholding any resumes received.
Advise employers regarding the implications of locating a qualified U.S. worker applicant.
Counsel employers when they have questions about whether an applicant is unqualified.
Provide advice to employers during the applicant review process to ensure they are complying with all applicable legal requirements.
Advise on the best methods for contacting for contacting applicants and appropriate timeframes for reviewing applications and contacting applicants for interviews.
Assist employers in understanding what bases for rejection constitute lawful job-related reasons.
Advise that only “U.S. workers” need to be considered for the position, and help employers understand how to ascertain whether an applicant is a “U.S. worker.”
Provide employers with blank interview checklists, charts, or documents listing the positions’ minimum requirements for the position, to help employers ascertain whether applicants are qualified.
Advise employers that they are not legally required to hire any qualified U.S. worker located through labor certification recruitment, but that they cannot file a PERM application based on that recruitment.
Advise employers on whether the employer’s determinations as to whether the candidates failed to meet the minimum requirements are legally sound and defensible in the event of an audit.
36 See supra, note 5 (emphasis added).
37 See supra, note 9.
However, attorneys must not engage in the following activities:
Participate in the interviewing of U.S. worker applicants.38
Pre-screen or make initial qualitative comments on applicant resumes.
Dissuade an employer from an initial determination that a particular U.S. worker is minimally qualified, able, willing and available for the position.
The key attributes of the gifts recommended for a tenth wedding anniversary (tin and aluminum)
39 are their durability and flexibility. At PERM’s tenth anniversary, it is increasingly apparent that PERM’s durability will be shaped by its flexibility in adapting to the legitimate processes and needs of the stakeholder community. In the recruitment stage of PERM, this requires recognition of real world recruitment procedures and the primacy of good faith efforts over minor technical deficiencies. Reaching this goal will require, as is the case with successful marriages, open communication and recognition of a shared vision by all parties.
38 An exception to this rule applies where the attorney or agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed.
39 See http://www.weddingtips.com/annv.html