|
|
|
|
  |
       
|
The Department of Labor (DOL) has, after much anticipation, issued its new rules governing procedures for processing alien labor certifications in connection with employment-based immigration petitions. The new rules impose fairly dramatic changes to existing process, and, if they work as advertised, the PERM rules could reduce labor certification processing times from years to a couple of months. Under the new certification procedures, DOL determinations will, in most cases, be based on employer attestations that their efforts to recruit US workers for a job opportunity, following DOL prescribed measures, failed to produce an able and qualified candidate other than the foreign worker. The employer will be required to submit the evidence supporting the recruitment only where DOL has selected the application for audit, either due to substantive issues or through random selection. The outcome of an audit may be an order to conduct a supervised recruitment, which is now supposed to become the exception rather than the rule. Significantly, the role of the State Workforce Agencies (SWAs), which have proven to be bottlenecks in the past, will be limited to issuing pre-recruitment prevailing wage determinations. The PERM rules establish a five step process for employers seeking labor certification in most cases: (1) defining the job and identifying its requirements; (2) obtaining a prevailing wage determination from a SWA; (3) conducting the recruitment and preparing a recruitment report; (4) preparing and filing the application and attestation form; and (5) responding to DOL audit requests, if applicable. A DOL Certifying Officer (CO) could compel a sixth step - supervised recruitment - if concerned that the employer conducted recruitment was not performed in good faith. Different certification rules apply to occupations for which DOL has certified that there is a nationwide shortage of workers (Schedule A occupations), which currently includes physical therapists, professional nurses, and persons of exceptional ability in the arts and sciences (e.g., university professors) and performing artists.
STEP ONE: IDENTIFICATION OF JOB REQUIREMENTS The essence of the recruitment effort is the matching of the skills of applicants with the employer’s requirements for the particular set of functions it needs performed. A mismatched job definition and skill set requirement may well result in the DOL’s rejection of the recruitment effort either because the job as described did not really exist or because the requirements advertised failed to reflect those actually needed to perform the job function. DOL rules require that in describing and recruiting for a job opportunity, the employer use “actual minimum requirements” of the position. Job requirements must be premised on one of two bases:
(1) “[t]hose normally required for the occupation and which do not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation in DOL’s O*NET Job Zones occupation catalog; or
(2) The employer’s “business necessity,” i.e., that the job’s duties and requirements “bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.” As in the predecessor rules, DOL COs will continue to exercise their discretion in determining what occupational requirements are and are not “normal” for a position. Absent a business necessity justification, however, COs must use the DOL prescribed determinations for the how much preparation time an employer can require a candidate to have had for a job opportunity. DOL’s intention is to prevent employers from requiring candidates to possess more education or experience then a job would normally require in order to benefit a preferred non-US candidate. For example, O*NET establishes an SVP of “7 to less than 8” for “Computer Software Engineer, Applications,” which equates to from two to up to four years of combined education and experience as the baseline requirement. In other words, the employer can require no more than four years of combined education and/or experience from candidates applying for this position. An employer could not, therefore, require candidates to posses a masters degree absent a showing of business necessity. This might be accomplished by demonstrating that the employer develops software applications of such great complexity and for such critical functions, that engineers must posses the skills and judgments achieved only through the rigors of a master’s degree program. Foreign language skills may also comprise a business necessity-based job requirement depending on either the nature of the occupation or a need for the employee to communicate with particular populations. An occupation may by its essence require foreign language proficiency, as in the case of a translator or language teacher. More common, however, would be instances in which the employee must communicate in a language with “a large majority” of an employer’s customers, contractors or employees. Examples might include:
Evidence of business necessity in these cases may require providing DOL with substantial documentary evidence. Many jobs do not fall neatly within a die-cut occupational description, particularly in smaller organizations. The PERM rules permit an employer to develop job requirements which reflect a combination of occupations provided that it has normally employed workers for that combination or that other companies in the area customarily employ such workers. If neither of these factors is present, the employer may attempt to establish that business necessity requires the combination of occupations, which can prove quite difficult. The employer must demonstrate, for example, why there are no reasonable alternatives to combination requirements, such as the hiring of part time employees, company reorganization, or the purchase of new equipment. The showing must be thoroughly documented and more than a “mere assertion of convenience” by the employer that one head is better than two. The employer may use alternative experience requirements (i.e., those not customary for the position) provided they are “substantially equivalent to the primary requirements. DOL will reject certification for a worker already employed by the applicant who qualifies for a job primarily on the basis of alternative requirements unless the employer’s recruitment makes clear that any combination of education, training and experience is acceptable.
STEP TWO: OBTAIN PREVAILING WAGE DETERMINATION FROM STATE WORKFORCE ADMINISTRATION The PERM rules require employers to obtain a prevailing wage determination from the SWA with jurisdiction over the work location of the job using the SWA’s established procedures. This usually requires the submission of a form describing the employer, its business, the work location, the job duties, educational and experience requirements, special working conditions and supervisory functions. The DOL does not impose a time limit on the SWA’s processing of the wage determination request. In most cases, the SWA must determine prevailing wage on the basis of the arithmetic mean (total of all wages sampled divided by the number of samples) of the wages of workers similarly employed in the area in which the job is located. Unless the employer provides its own survey, the SWA must derive mean wages from the DOL’s Occupational Employment Statistics (OES) Survey. In December 2004, Congress amended the INA to require the OES Survey to reflect no fewer than four experience levels, and established a formula for deriving two intermediary levels from the two levels OES has published in the past. Until DOL establishes policies on matching experience levels with wage levels, it is likely that SWA prevailing wage determinations will vary widely from state to state, and even from office to office. The employer may provide its own survey to support a prevailing wage application that is based on either the arithmetic mean wage or, if that is not available, on the median wages of workers similarly employed. The median wage is that for which half the sampled wages are higher and half are lower. Employers need not demonstrate that private wage surveys are at least as accurate as the OES. In submitting a private survey, the employer must provide the methodology used and confirm that data must have been collected within the last 24 months. The SWA must provide an explanation for its refusal to use the employer survey. If the position is covered by a collective bargaining agreement, the prevailing wage is as negotiated between employer and the union. DOL also will permit – but not require -employers to continue to use the wages established under the Service Contract Act and the Davis-Bacon Act. Once issued, the prevailing wage determination is valid for 90 days, so that a petition for an alien worker must be filed within that time. Under the 2004 amendments to the INA, the wage offered to the alien worker must be 100% of the prevailing wage in the work location.
STEP THREE: CONDUCT RECRUITMENT Among the PERM rules’ key elements is that employers must conduct recruitment prior to filing a labor certification application and, in most cases, without government supervision. Employers must instead follow PERM’s recruitment rules governing advertising, candidate solicitation, and employee notice, and then produce a recruitment report documenting the outcome and the basis for rejecting US applicants. While neither the recruitment report nor any other document will be filed with the certification application, DOL may demand to review the report and other documents if it selects the application for audit. The recruitment effort is comprised of four elements for professional positions (bachelors degree and above) and three elements for non-professionals:
A. Newspaper Advertising Advertisements for both professional and non-professional positions must be placed in the newspaper of general circulation "most appropriate to the occupation and the workers likely to apply for the job opportunity." The choice of a newspaper read by a population segment unlikely to include likely candidates for a job opportunity will count against the employer in the DOL's consideration of the application. Advertisements for professional positions bear the additional burden of appearing in newspapers "most likely to bring responses from able, willing, qualified, and available U.S. workers." In both professional and nonprofessional cases, the advertisements must be run on two different Sundays which may be consecutive. In rural areas without a Sunday edition, advertisements may be run during the week. Advertising must be placed between 30 and 180 days prior to filing. The information to be included in the advertisement are precisely described in the PERM rules. Advertisements must state:
B. Recruitment Steps for Professional Positions Employers recruiting for professional positions must engage in additional recruitment steps beyond those required generally. (Professional positions include those for which a bachelor's degree or higher is the usual minimum requirement.) The additional recruitment steps including at least three of the following:
DOL rules seek to prevent conflicts of interest in the employment interview process by barring either the proposed foreign worker or his agent/attorney from participating in candidate interviews or in the consideration process. The employer’s agent or attorney may participate in the process, provided they normally participate in the hiring process on behalf of the employer for positions such as those which the foreign worker would fill.
D. Preparation of the Recruitment Report Upon completing the selection process, the employer must prepare a recruitment report articulating the recruitment steps undertaken, the results achieved, the number of hires made, and the number of US workers rejected, if any, categorized by the reason for the rejection. Candidate rejection must be on the basis of valid reasons – lack of qualification, ability, availability, or willingness to work. In assessing the validity of the rejection of a US worker, qualification and ability will be measured against the job qualifications established by the employer and whether the employer has applied them improperly. Moreover, a US worker may not be rejected on the basis of inadequate qualifications if they can develop the necessary skills during a reasonable period of on the job training. The employer need not provide on the job training to a U.S. worker who fails to meet the employer’s stated minimum requirements to begin with (e.g., education, training or years of experience). Additionally, the employer need not assess whether the prospect's experience can substitute for some or all of the job’s minimum education requirements. The employer does not file the recruitment report with the labor certification application, but must produce it in the event of a DOL audit of the application. DOL may also request to see the resumes of rejected US candidates, sorted by the reason for the rejection. The employer must retain the recruitment report and related documents for five years.
STEP FOUR: COMPLETE AND FILE APPLICATION ON FORM ETA 9089 A. Completing the Form The application form itself is comprised of eight parts:
By signing the declarations, the employer attests to the fact that:
B. Filing The application can be filed either electronically using a web based interface from the DOL’s Employment and Training Administration (ETA) web site, or by mail to one of the two DOL processing centers. Online processing looks to be strongly preferred, as now work will be performed on mailed hard copies until they have been manually entered into DOL’s computer system by contractors – using the ETA’s web based interface. Beyond the delay factor, recoding is more likely to allow the introduction of errors. Issuance of priority dates for electronically filed applications are as of the completion of the on line form. Priority dates for mailed applications are as of the date the application is stamped in, which could be several days after receipt in the processing center mail room..
C. Employee Notice of Filing Employers must provide notice of the application once filed with DOL. If the position is covered by a collective bargaining agreement, notice to the union representative is sufficient notice to all employees. If, as in most cases, there is no collective bargaining agreement, the employer must post a notice of the recruitment in a conspicuous place for ten consecutive business days, as well as place it on electronic in-house media at a location where employees would likely look for job postings. The posting period must be completed no more than 180 days or less than 30 days before filing of the labor certification application. In all cases, the contents of the notice must include:
STEP FIVE: DOL PROCESSING: APPROVAL OR AUDIT A. Standard of Review DOL's certification decision will be based on whether or not the employer has met the statutory requirements for permitting an alien to immigrate for the purpose of employment:
The CO will determine that a US worker is able and qualified if either "by education, training, experience, or a combination" the US worker is able to perform "in the normally accepted manner the duties involved in the occupation as customarily performed by other US workers similarly employed." If the employee does not maintain the requisite qualifications, the employer must also hire US workers who can acquire the skills necessary to perform the job duties involved in the occupation "during a reasonable period of on the job training." The CO will apply the "no adverse effect" standard by review of labor market information, special circumstances of the industry, area prevailing wages, and prevailing working conditions, such as required work hours. Because the certification application does not include supporting evidence or documentation, this assessment is based on information and data supplied by DOL.
Based on review of the application form, the DOL CO may certify, deny, or conduct an audit of the application. Where there is no audit and the application is deemed grantable, DOL's objective is to provide electronically filed applications a certification decision within 45-60 days of filing. If the application is incomplete or DOL concludes that on its face it fails to meet the standard of review, the application may be denied. Alternatively, DOL may decide to conduct a substantive audit of the application, requiring the employer to submit its supporting documents. DOL will also conduct audits of randomly selected applications in order to gauge compliance levels. DOL will also conduct audits on applications which trigger red flags (which DOL has not disclosed.) Applicants receiving an audit letter must produce supporting documentation within thirty days of issuance. The requested documents could include the recruitment report, newspaper advertisements, proof of additional recruitment efforts, employee notices, notices to layoffs, documents supporting "business necessity" job requirements, and other materials. The CO may grant one discretionary thirty day extension of time. The CO may dismiss the application if the employer fails to timely respond. There is no time limit within which the CO must issue a decision on an audited application. On review of the application and supporting documents, the CO may certify or deny the application, or may order that DOL conduct a supervised recruitment for the position in any case deemed appropriate. The supervised recruitment is, in effect, the CO's vote of no-confidence in the employer's recruitment efforts to date. The CO may also conclude that an employer, as a result of a succession of audits, must conduct all future recruitments under supervision. Supervised recruitment procedures include:
C. Appeal Employers may appeal certification denials to the Bureau of Alien Labor Certification Appeals (BALCA) which must either affirm the CO's ruling, reverse and order certification, or conduct its own trial-type hearing. The PERM rules do not permit BALCA to remand to the CO for further fact finding. There is no time limit on BALCA consideration of an appeal. It's decisions may be appealed to the federal courts.
CONVERSION OF PENDING CASES With respect to cases filed prior to the March 28, 2005, effective date of the PERM rules, employers may choose to either continue processing under the rules in effect when filed (i.e.., SWA recruitment or Reduction in Recruitment ("RIR")), or may choose to withdraw and refile under PERM. Moreover, the employer will retain its earlier priority date, a critical factor with respect to preserving grandfathered status under Sec. 245(i). Cases which are not converted will continue to be processed under DOL's the backlog reduction program. In order to qualify for conversion, the pending case must not yet have resulted in a SWA job order, and the refilled case must be in every respect identical to the pending case. DOL has emphasized in public meetings that any change whatever in the refiled application may void preservation of the priority date. This would include even the most minor revisions, such as a change in the address of the employer's head office by a few blocks. Notably, all amendments to the originally filed application will be maintained in the refiled PERM application. The new PERM processing Form 9089 includes a checkbox to denote pending cases which are being refiled. If checked, the pending case will be deemed withdrawn, but with the original priority date maintained. If an employer does withdraw a pre-March 28, 2005 application, it may still retain the original priority date provided that it refiles the PERM-based application within 210 days of notice of withdrawal. If, however, the refiled application is denied, the employer may not rely on the earlier, withdrawn application to provide a second bite at the apple.
CONCLUSION Two and a half years in the making, the PERM rules hold the possibility of dramatically reducing processing times for labor certifications necessary for certain employment-based immigration categories. While there remain concerns about how uniformly DOL offices will implement the rules, and the nature and scope of the audit process, PERM may yet prove to have been worth the wait.
|
|
Home :: About Us :: Site Map :: Contact Us :: Legal Notice Corporate Services :: Individual Services :: Immigration Policy Law Office of Charles A. Tievsky, PLC 1875 Campus Commons Dr., Suite 201 , Reston, Virginia 20191 USA Ph.+1 703 716 0022 , Fax: +1 703 935 6088
© 2009 Charles A. Tievsky, PLC All Rights Reserved |
|---|
