PERM Labor Certification Recruitment and the Disqualification of Applicants

December 10th, 2017

The PERM labor certification application is the first stage for most immigrants in an employment-based case for legal permanent residency. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to offer at least the prevailing wage for the position and then conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified, willing, able and available US workers.

The Department of Labor (DOL) requires that the employer be willing to hire a U.S. worker if one is qualified and available, although it will not force the employer to hire such worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating US job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.

In the six months prior to filing an application, employers are required to place a job order with the state’s unemployment bank and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods (e.g. job fairs, employer’s web site, job search website other than the employer’s, on-campus recruiting, newsletters or journals of trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers; and radio and television advertising).

Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit. The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application.

Minimally Qualified Applicants

Should no available, able, willing, qualified, available U.S. worker applicants respond to the ads and other recruitment efforts, then the employer files the labor certification application with the DOL. US workers include:

• U.S. citizens and nationals;
• legal permanent residents;
• certain temporary and permanent residents who entered the US before 1982 and were granted adjustment of status;
• special agricultural workers granted adjustment of status; and
• refugees and asylees.

Aliens who are in F-1 status and hold optional practical training (OPT) and H-1B workers are not considered U.S. workers.

In terms of disqualifying US workers, it should be emphasized that the applicant must be able to reasonably perform the job duties. Thus, even if the applicant satisfies the minimum education and experience requirements, or has alternative qualifications equivalent to the minimum requirements, he or she can still be ineligible for the position. Also, an employer company can request references to determine if the applicant is truly qualified for the position. Further, the applicant must be willing to fill the job and all its attendant terms, including the salary. Therefore, if an applicant wishes a higher salary he is not considered a “willing” applicant for the PERM labor certification process and he can be disqualified.

It should be emphasized that the DOL will consider a candidate minimally qualified, even if he does not satisfy the actual minimum requirements, if he could acquire the skills necessary to perform the job in a reasonable period of on-the-job training. Thus, for applicants who do not meet the explicit requirements on the labor certification, the employer should document how each such applicant could not be trained on the job within a reasonable period of time.
In terms of ascertaining whether an applicant is minimally qualified, an employer may disqualify a PERM applicant if there is no reasonable possibility that the applicant meets the employer’s job requirements based on his resume alone. Where the applicant’s resume is silent regarding a major requirement, i.e., a college degree, and the resume omits any relevant experience and no evidence is provided showing requisite training in the job opportunity, then the employer can reject the applicant for a lawful, job-related reason.

Substantially Equivalent Alternative Requirements

When an employer’s alternative requirements are substantially equivalent to the primary requirements and the alien only meets the alternative requirements, the employer must indicate that applicants with any suitable combination of education, training or experience are acceptable. Alternative and primary requirements must be substantially equivalent in terms of whether the applicant can reasonably perform the job duties.

Responding to US Workers Applying for the Position

The employer should respond in a reasonably prompt fashion to any applications from US workers responding to any ads, postings or notices for the PERM position. If attempts to contact the applicant through the phone or e-mail are unsuccessful, then the employer should send a letter via certified mail or mail sent by overnight delivery to the applicant.

Proper Standards of Disqualification

Regarding the interview process and proper standards of disqualification of candidates, as long as the job requirements are within the limits prescribed by the regulations, the rejection of US workers who do not meet all those requirements is lawful and job-related. It is important that employers not to ask illegal questions, that is, questions regarding marital status, gender, sexual orientation, health or handicap, religion, age, ethnicity, race, or citizenship status. Regarding the applicant’s work authorization, the employer should ask only if the applicant has the right to work permanently in the US. Also, the employer should not reject a job applicant for subjective reasons, for example, because it finds the applicant to be unattractive, insufficiently outgoing, or has a personality conflict with the applicant. Moreover, the employer must not add job requirements that were not included in the job advertisement. Furthermore, the employer must not reject U.S. workers whose qualifications exceed the job’s requirements. Finally, the employer must not reject a job applicant because he has requested a higher salary than what is being offered unless the employer has actually made the job offer already.

Also, the employer should ask the following questions of each applicant:

• Does the applicant meet the minimum education, experience and training requirements for the position, or a suitable alternative combination thereof?
• Can the applicant reasonably perform the job duties as listed in the labor certification application?
• Is the applicant willing and able to accept the job offer (salary, relocation, etc.)?
• Do the applicant’s references support a job offer?
• Does the applicant have the right to work permanently in the U.S.?

Regarding the last question, this is the only legal question the employer may ask regarding the applicant’s national origin, citizenship or immigration status and whether that person is a US worker. The employer may not discriminate on the basis of national origin.

Recruitment Report

Employers under PERM will need to prepare a recruiting report that describes recruitment steps undertaken and the result achieved, the number of hires and, if applicable, the number of US workers rejected, categorized by lawful job related reasons for such rejections. The Certifying Officer (CO), after reviewing the employer’s recruitment report, may request the US workers’ resumes or applications, sorted by the reasons the workers were rejected.

BALCA Overturns PERM Denial in Matter of Marlabs

November 27th, 2017

In Matter of Marlabs, Inc. 2013-PER-01125 (Nov. 9, 2017), BALCA reversed the Department of Labor’s (DOL) denial of a PERM labor certification application (ETA 9089). The employer filed an Application for Permanent Employment Certification (“Form 9089”) sponsoring the alien for permanent employment for the position of “Software Developers, Applications,” and required a master’s degree and five years of experience. Also, the employer did note that it would accept any suitable combination of education, training or experience. In response to an audit, the employer had provided a statement that the rejection was due to lack of a bachelor’s degree. The certifying officer (CO) determined that the employer’s statement that the applicant did not meet the minimum requirements was not specific enough to determine whether the employer rejected the applicant for a lawful, job-related reason. The CO concluded “the mere assertion that a candidate does not have a Bachelor’s degree is not sufficient to reject the candidate without additional information” because the employer stated it would accept any suitable combination of education, training, and/or experience.

BALCA disagreed with the CO because it found that there was no reasonable possibility that the applicant met employer’s job requirements based on his resume alone. It cited to several cases noting that it is the employer’s burden to demonstrate that there is no reasonable possibility that an applicant meets the job requirements (Xerox Business Services, LLC, 2013-PER-00092 (Jan. 27, 2017); Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc). BALCA also stated that in Select International, Inc. 2011-PER-01478 (Sept. 19, 2012), it held that if the applicant’s resume “indicated” that the applicant lacked the minimum requirements for the job, then the employer could reject the applicant without an interview. In addition, BALCA noted that the same standard applied to major requirements such as a college degree. Lemon Bay Drugs, 2015-PER-00009 (Jan. 12, 2017).

In this case, BALCA stated that the applicant’s resume was silent for a major requirement, i.e., a college degree, and that the applicant had no relevant experience and provided no evidence that he had any training in the job opportunity. Hence, BALCA concluded that the employer rejected the applicant for a lawful, job-related reason.

PERM Labor Certification Statistics Issued

October 25th, 2017

The US Department of Labor’s (DOL) Employment and Training Administration (ETA)/Office of Foreign Labor Certification (OFLC) issued selected statistics for its Permanent Labor Certification Program for fiscal year (FY) 2017. The PERM labor certification application is the first stage in most employment-based applications for legal permanent residency and requires the employer to obtain a prevailing wage determination, run recruitment and certify that there are no minimally-qualified, willing, able and available US workers for the position.

According to the DOL, for FY 2017, it received 105,034 applications, up 8% from 2016. The top five occupations of certified applications were as follows: (1) computer and mathematical (58%); (2) architecture and engineering (8%); (3) management (7%); (4)business and financial operations (6%); and (5) education, training and library (3%). The top five visa countries of citizenship of the foreign beneficiary were as follows: (1) India (55%); (2) China (9%); South Korea (6%); Canada (4%) and Mexico (2%). The minimum education requirements for 46% of the PERM applications were for advanced degree positions (master’s or a bachelor’s and five years of experience), 39% for a bachelor’s degree, 11% for less than a bachelor’s and 3% for all others.

Regarding the status of active PERM applications, 76% are under analyst review, 16% are under audit review, 6% are on appeal and 1% are under sponsorship/BE.

Legal Permanent Residency and the PERM Labor Certification Application

October 7th, 2017

The most prevalent avenue for a foreign national to obtain legal permanent residency in the US through employment involves the PERM labor certification process. There are two or three stages to obtaining legal permanent residency through this PERM labor certification process: (1) the PERM labor certification application (2) the immigrant visa petition; and (3) the application to adjust status or consular process abroad for the immigrant visa. The immigrant visa petition and application to adjust status may be filed concurrently in cases where a visa number is immediately available, thereby eliminating one step.

The foreign national is not allowed to make any payments for the PERM labor certification and the employer must exclusively incur all costs related to it. This includes the advertising fees as well as the attorney’s fees. Also, the employer engaged in the labor certification process will be prohibited from withholding from an alien’s wages, either in increments or in lump sum, any payment in reimbursement to the employer for costs associated with that process. The employer and/or the foreign national may pay for any and all costs associated with the second and third stages.

In the PERM labor certification stage, first the employer obtains a prevailing wage determination from the US Department of Labor (DOL) to ensure that it is offering the requisite prevailing wage. Then the employer advertises the position and responds to any U.S. applicants to the position. If no qualified, willing, able and available U.S. workers respond, then the employer files the PERM labor certification application (Form ETA 9089) with the DOL electronically (there are exceptions where paper filing is possible, but it is not recommended). The DOL may then certify the application or perform an audit to ensure that the employer has complied with the PERM recruitment obligations and/or to determine if there are no other deficiencies in the labor certification application, such as unduly restrictive requirements, or if any qualified applicants responded to the recruitment. During an audit, the DOL may also conduct supervised recruitment. The DOL initially predicted that it would take 45 to 60 days to process a labor certification application. However, the current processing times are approximately three months (and even longer for audited cases). It should also be noted that it takes around five months to prepare and file a PERM case.

If the DOL certifies the PERM labor certification application, then the employer proceeds to the second stage and files the immigrant visa petition. In support of the immigrant visa petition (Form I-140), the employer must submit evidence of its ability to pay the proffered wage as of the date of the filing of the labor certification application (priority date) and continuing up until the date of filing the I-140. Evidence of this ability shall be either in the form of copies of annual reports, federal tax returns, or audited financial statements. An employer with more than 100 employees may submit a letter from the chief financial officer attesting to the company’s ability to pay the wage, although USCIS can request additional evidence.

Losses on a tax return does not necessarily hurt the company’s ability to show its ability to pay the wage. This is because USCIS will consider the payment of wages to the beneficiary as evidence of its ability-to-pay the wage. Therefore, even though the employer is not required to pay the beneficiary the wage offered on the PERM application until the final stage of the legal permanent residency process is approved, it is highly recommend that company pay the beneficiary the wage offered on the PERM application as of the date of filing the PERM application. If the company pays less than the wage offered on the PERM application, then it must show its ability to pay the difference through the evidence noted above (with the tax returns or annual report being the best evidence) or with secondary evidence (profit/loss statements, bank account records, or personnel records and other evidence of the company’s ability to pay the wage going forward). However, it should be emphasized that USCIS is not required to accept this secondary evidence.

In addition to the financial evidence, the employee must submit evidence that he or she met the minimum education and experience requirements at the time the labor certification application was filed (diplomas, transcripts, education equivalency evaluations, employment experience letters, etc.).

If an immigrant visa number is immediately available, then the employee may also file the application to adjust status to legal permanent residence (Form I-485), along with his or her spouse and children under 21. The worldwide level for annual employment-based preference immigrants is at least 140,000 and these numbers are divided equally among all countries. Since there is a far higher demand for visas for foreign nationals from India and China, this results in a tremendous backlog and wait for visa numbers for foreign nationals from these countries (which could be as much as approximately 10 years). The US Department of State issues a Visa Bulletin each month providing the dates that visa numbers become available (https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html).

Approximately three months after filing the application for legal permanent residence the employee may receive universal work authorization. Thus, if the foreign national’s current nonimmigrant status is expiring at this point, he or she could continue pursuant to the universal work authorization.

It usually takes approximately six months for the application for legal permanent residence and the immigrant visa petition to be adjudicated (although there have been isolated cases of approvals within several months). If it is approved, then the foreign employee must report to work for the sponsoring employer. There is no specified period of time during which the employee must remain with the sponsoring employer, although six months is a relatively safe period. Therefore, in summary, the employee can obtain legal permanent residence within fewer than two years should an immigration visa number be immediately available before filing the immigrant visa petition.

If there is a visa number backlog at the time the labor certification is approved, then the employer files the Form I-140 immigrant visa petition but the foreign national does not file for adjustment concurrently. Instead, he or she must wait for a visa number to become available. Also, once the labor certification or immigrant visa petition has been pending at least one year, even if it is not approved, the foreign national can obtain additional years in H-1B status (the primary nonimmigrant visa used by professionals to work in the US) beyond the initial six-year period until the application for permanent residence is finally approved.

BALCA Cases on PERM Requirements and Recruitment

July 25th, 2017

The Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) recently published three cases on the minimum requirements, recruitment and disqualification of US workers associated with PERM labor certification applications. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to first conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified US workers. If such a worker does respond to the PERM ads, then the employer may not file the PERM labor certification application (Form 9089) but is not required to hire such US worker.

In Matter of MSL, Inc. (7/17/17), BALCA upheld the denial of a PERM labor certification finding that a US worker was improperly rejected for not passing a test where the Form 9089 and recruitment did not disclose a testing requirement, and there was no evidence that the foreign worker was required to take a test. BALCA cited 20 CFR §656.17(i)(1) that provides that “the job requirements, as described [on the Form 9089], must represent the employer’s actual minimum requirements for the job opportunity.” It emphasized that the employer must not treat the alien more favorably than a US worker.

In Matter of Systime Computer Corporation (7/18/17), BALCA overturned the CO’s denial based on a finding that the position was not clearly open to US workers where the Form 9089 PERM labor certification allowed for alternate requirements that were not mentioned in recruitment. On the Form 9089, the employer indicated the requirements of a bachelor’s degree in computer science, engineering or a related field and 24 months of experience. The employer also stated on the form that 24 months as a software designer, developer or tester as an alternative requirement to the experience in computer science or engineering. Also, the employer specified that four years of relevant experience would obviate any educational requirement and finally stated that it would accept any suitable combination of education, training or experience for the position and a combination of degrees, diplomas and experience equivalent to a bachelor’s degree and 24 months of experience. The employer did not include the precise alternate experience requirements described on the Form 9089 in any of the ads. The website ads placed by the employer noted that it “will accept a combination of education and experience equivalent to a bachelor’s degree and 24 months of experience.”

BALCA analyzed Matter of Systime Computer Corporation under 20 CFR§656.10(c)(8), which requires an employer to attest that “[t]he job opportunity has been and is clearly open to any US worker.” It noted that in prior decisions the relevant inquiry under this regulation is whether the employer’s job search website ads and job order “so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker.” It referred to cases denied where the salary was understated or the requirements overstated in the ads. BALCA also noted that in other cases a mere omission of information does not result in a finding that the job is not clearly open to US workers. It found that the omission here was of an equivalent requirement (and not an overstatement of the actual minimum requirements) and that such omission was not sufficient to undermine the employer’s PERM attestation that a position was open to any US worker.

In Matter of Pixar (7/17/17), BALCA applied the reasoning from Smartzip Analytics, finding that a Form 9089 labor certification application cannot be denied on its face based on a failure to provide a duration requirement for special skills listed in Box H.14, short of legally sufficient notice of a requirement to do so. The Form 9089 does not require, or have a specific field to enter, such specific information.

BALCA Affirms Denial of PERM Stating “Delivery of Products” Indicates Travel

July 12th, 2017

In Matter of Arbin Corporation (06/29/2017), BALCA affirmed a denial of a PERM labor certification application where the newspaper ads did not contain any language advising clients of travel. The job description included the phrase “delivery of products,” which to BALCA indicated travel. The PERM sponsor must always note any travel requirement in the PERM recruitment.

BALCA’S Ruling on PERM Case Involving Proper Disqualification Based on the Face of the Resume

July 3rd, 2017

In Sunnyvale School District, 2014-PER-00620, June 22, 2017, BALCA overturned the denial of a PERM labor certification application, finding that the US applicant may be disqualified on the face of the resume. In Sunnyvale, the employer filed a PERM application for a special education teacher. The employer required a valid California teaching license t provide services to children from birth through pre-kindergarten with special needs. The Certifying Officer (CO) audited the application and then directed the employer to conduct supervised recruitment. It instructed the employer to further investigate any applicant whose resume raises a reasonable possibility that the applicant meets all of the position’s requirements and explore the possibility of training US workers to perform the duties within a reasonable period of time.

The case revolves around one of the applicants whose resume indicated that she has a BS degree in elementary education, special education, three years of teaching experience in special education for sixth and seventh graders and in interest in teaching all ranges of ages. It did not indicate any license.

BALCA noted that it may be clear from the face of the resume that the US applicant’s deficiencies cannot be remedied through a reasonable period of on-the-job training. It offered the example of a resume that is silent as to whether the applicant meets a “major” requirement, such as a college degree. In such a case it found noted that an employer might reasonably assume that the applicant does not have such education, and therefore, rejection without follow up may be proper. It cited to Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc)(pre-PERM).

If, however, the applicant’s resume notes a broad range of skills, education and training that are the job’s requirements, and is silent only about a “subsidiary” requirement, this makes it more likely that the applicant may meet all of the requirements and, hence, the employer has a duty to inquire further. BALCA noted that this obligation usually occurs when the applicant has the requisite degree but not the particular skill noted in Section H.14 (special requirements) of the Form 9089.

BALCA then found that in the instant case, the applicant’s resume omitted a major requirement – a professional state license. It held that under Gorchev, the employer could properly assume that the applicant’s failure to list such a major requirement meant that she did not have the license. Furthermore, BALCA held that it is doubtful that any amount of on-the-job training could substitute for such a license. Therefore, BALCA found that the applicant’s resume did not establish a reasonable possibility that she could qualify for the position.

USCIS Denies Downgraded EB-3 I-140 Petition and Revokes EB-2 for Chinese H-1B

May 19th, 2017

An H-1B worker from China called to inform me that USCIS has denied his company’s Form I-140 immigrant visa petition to downgrade from his approved Form I-140 petition and also revoked the company’s first I-140 EB-2 petition on his behalf. USCIS claimed that he did not have the requisite education, among other things. His current H-1B status will be valid until 2019. This situation must be evaluated under the high skilled worker rule published in January 2017 regarding the retention of priority dates and validity of I-140s later revoked. In this case, if the Chinese H-1B’s I-140 remains valid for H-1B extension purposes, then he can restart the PERM labor certification process, possibly retain the priority date, and not worry about extending his H-1B status again until his priority date becomes current.

Denials Suspended of PERM Cases Where H.14 Requirements Not Specified

December 9th, 2016

Based on BALCA’s decision in Matter of Smartzip Analytics, the DOL’s (Department of Labor’s) Office of Labor Certification (OFLC) will suspend denials of PERM labor certifications where experience noted in Section H.14 of the Form ETA 9089 was not quantified. In Matter of Smartzip Analytics, BALCA reversed the certifying officer’s denial where the required experience was not quantified for each skill listed in Section H.14 of the Form ETA 9089, explaining that the Form ETA 9089 nor its instructions mandate a duration requirement.

Filing a Second PERM Labor Certification Application for the Same Employee

October 25th, 2016

In Matter of Allianz Global Investors of America, BALCA upheld the Certifying Officer’s (of the Department of Labor) denial where the employer filed two PERM applications for the same employee with substantially similar job duties, referring to 20 CFR§656.24(e)(6), which states that the employer is not allowed to have more than one labor certification pending for the same foreign worker in the same job opportunity.

The best practice when filing a second PERM for an employee in the same occupation is to first withdraw the first one (preferably online, it is quick and easy).