AILA TX/NM/OK Chapter Spring Conference PERM Labor Certification: Best Practices & Hot Topics April 23 rd -25 th, 2015 Sante Fe, New Mexico Jeffrey M.

AILA TX/NM/OK ChapterSpring Conference

PERM Labor Certification: Best Practices & Hot Topics

April 23rd-25th, 2015Sante Fe, New Mexico

Jeffrey M. ZimskindStevens & Lee Bethlehem, PA

Rebecca R. Massiatte JMO Firm, PLLC

Dallas, TX

Notice of Filing: Contains All of The Critical Info Employer’s Name Location of Employment Job Title Job Duties

Best Practice #1:Start At The Beginning

Educational Requirements Experience Requirements Special Requirements Salary (range) Employer Contact Information In-House Media

Start At The Beginning (cont.)

SHOULDN’T be a difficult issue… Best to double-check and verify Does identity of PERM employer influence

whether experience gained with an affiliate can be used?

FEIN Verification Issues Consider whether an employer’s name/FEIN

can be used to your advantage

Best Practice #2: Get the Employer’s Name Right

Fixed? Travel?

How to describe? Interplay with prevailing wage level? Looking towards the future…

Best Practice #3: Get Travel Right

Articulating Weird Travel Situations

1. LOCATION OF EMPLOYMENT: Chicago, Illinois office or at the employee’s option can be home office based within 500 miles of Chicago. For home office based employees, approximately two consecutive weeks each month must be spent working from the Chicago office, and occasionally additional travel on short notice to Chicago for meetings, etc., will be necessary.

Travel (cont.)

2. LOCATION OF EMPLOYMENT: Chicago, Illinois HQ or home based in continental U.S. Occasionally, short term training- or project-related travel may be required.

3. LOCATION OF EMPLOYMENT: Princeton, New Jersey, or can be home based within 125 miles of Manhattan.

Travel (cont.)

4. LOCATION OF EMPLOYMENT: Princeton, New Jersey (can be home office based in continental U.S. for up to one year)

5. LOCATION OF EMPLOYMENT: Dallas, Texas with long-term assignments (typically 1-2 years) to project locations in continental U.S.

And then probably best to add to Special Requirements:

Must be able to relocate as necessary for long-term assignments (typically 1-2 years) to project locations in continental U.S., or be willing to commute at own expense.

Travel (cont.)

Descriptive versus formal Lead Application Developer vs. Developer/Analyst III Business Immigration Attorney vs. Jr. Associate Quality Control Manager vs. Association Quality Control

Manager II

Look down the road as far as possible Make sure the Job Title is flexible enough that it will still

make sense when the employee files Form I-485, perhaps following a promotion or two Less of a concern with non-China/India EB-2s

Best Practice #4: Job Title Flexibility

Ask these questions: Are the duties correctly worded? Are any of the duties listed not essential, or are they,

as correctly worded, likely to change in the next year, or two, or three?

Are any truly essential duties missing?

Do not over-include (e.g. pulls black chair out, rotates chair, sits in chair, smiles, turns on computer, smiles again, enters password, opens Outlook, deletes spam email, then schedules lunch)

Best Practice #5: Job Duties- Yes, Yes & Yes

What is the employer’s actual minimum educational requirement?

What is “normal” per O*NET? What is “normal” on Planet Earth?

Best Practice #6: Review Educational Requirements

Consistency Concerns What is required elsewhere, such as H-1B, prior

PERM(s)? Is there a danger of NOT requiring at least a

Bachelor’s degree if the job is the same as the job the FN holds in H-1B status? What about Bachelor’s degree plus two years of

experience, or, in the alternative, 14 years of experience? Won’t work. Matter of Globalnet Management L.C., 209-PER-00110 (Aug 6, 2009) (AILA Doc No. 09101930). Matter of Microsoft Corp., 2011-PER-02563 (Oct 16, 2012) (AILA Doc No. 12102260).

Educational Requirements (cont.)

Can the educational requirement be justified by business necessity? Meaning, is manager willing to sign a declaration under oath explaining in detail why the educational requirement "bears a reasonable relationship to the occupation in the context of the employer's business and is essential to perform the job in a reasonable manner"?

Does the FN meet the educational requirement?


Did the FN meet the educational requirement before s/he began working for the employer?

Or, if the FN satisfied the requirement after s/he began working for the employer, was it during a time when s/he was working for the employer in a job not substantially comparable to the PERM job?



20 CFR § 656.17(i)(3) - in determining whether the beneficiary meets the minimum requirements, "DOL will review the TRAINING AND EXPERIENCE possessed by the alien beneficiary at the time of hiring by the employer" and that "the employer cannot require domestic worker applicants to possess TRAINING AND/OR EXPERIENCE beyond what the alien possessed at the time of hire unless the alien gained the EXPERIENCE while working for the employer . . . in a position not substantially comparable to the position for which certification is being sought."

Matter of Maxim Integrated Products, Inc., 2011-PER-02310 (Jan 6, 2014) (AILA Doc No. 14011047) ("The Department of Labor cannot take into account QUALIFICATIONS obtained while working for that employer.")

Are there two (or more) combinations of education and experience? E.g., Master’s degree plus 3 years of experience OR Bachelor’s degree plus 5 years of experience? If so, all things being equal, which is the preferred combination?

More discussion on alternative combinations below.


What is the employer’s actual minimum experience requirement?

What is normal per O*NET?

What is normal on Planet Earth?

Consistent with what has been stated elsewhere? E.g., prior PERM applications.

Best Practice #7: Review Experience Requirements

Can the experience requirement be justified by business necessity? Meaning, is manager willing to sign a declaration under oath explaining in detail why the experience requirement "bears a reasonable relationship to the occupation in the context of the employer's business and is essential to perform the job in a reasonable manner"?

Does the FN meet the experience requirement?

Experience Requirements (cont.)

If so, did s/he meet it when s/he began working for the employer?

Or, if the FN satisfied the requirement by virtue of experience with the employer, was it in a job not substantially comparable to the PERM job?

If so…go to Best Practice #8


Have employer prepare a grid listing all duties of the prior job and all duties of the PERM job, with number of hours each week or months spent on each duty. Is there less than 50% overlap in terms of time spent? Much better if it’s 45% or 40% or less.

Best Practice #8: Dissimilarity/Comparison Chart

Dissimilarity/Comparison Chart

Prior Job

Software Engineer

PERM Job

Sr. Software Engineer

Are there two (or more) combinations of education and experience? E.g., Master’s degree plus 3 years of experience OR Bachelor’s degree plus 5 years of experience? If so, all things being equal, which is the preferred combination?

For most JobZone 4 occupations, Master’s + 3 will yield a Level 3 wage.

WHEREAS - for most JobZone 4 occupations, Bachelor’s + 5 will yield a Level 4 wage.


Caution – if this is the first PERM for this position, and a labor cert will be filed on behalf of only one employee who meets only the alternative combination of requirements, employer might face skepticism that Master’s +3 is preferred.


Do you really want to require experience in the job offered, such that you would answer YES to H-6? Probably not.

DOL/USCIS tend to take a restrictive, literal view of what constitutes "experience in the job offered" - essentially the same exact job title, same exact duties, etc. How many jobs are there, really, that require 5 years of experience doing the exact same thing as the job in question? Most jobs that require 5 years of experience will require that the experience be relevant, and that, for instance, all of or a part of the experience was in a certain industry or required the use of certain key technologies. But that is different from the exact same job.


Except for those rare cases where experience in the exact same job really is required, why not check the NO box in H-6, the YES box in H-10, and in H-10-B put something like "any job title involving the development and implementation of Oracle ERP modules"?

Best Practice #9: Experience in Job Offered or Related?

Are there just too many special requirements?

Is manager willing to sign a declaration under oath explaining in detail why each special requirement "bears a reasonable relationship to the occupation in the context of the employer's business and is essential to perform the job in a reasonable manner"?

Best Practice #10: Are Special Requirements truly “special”?

Are they too specific? E.g., is experience in Word necessary, or will someone with WordPerfect experience be able to catch on quickly?

Is it really necessary to have had experience in all 6 programming languages or tools? Realistically, would someone with, for instance, 4 out of the 6, be able to slide into the job? Five out of the 6? Maybe they have to have 3 of them, but only 1 out of the other 3?

Best Practice #11: Are requirements too special?

Are the special requirements worded in an objective, straightforward, binary, yes/no way, so as to eliminate subjective judgments?

Compare:

“Excellent analytical skills.” It is going to be difficult to explain why an applicant was disqualified on the basis that his or her analytical skills were merely “very good” but not “excellent.”

With:

Did your experience include at least one year where your job duties included the application of the regulatory requirements at 21 CFR parts 201 and 211?

Did the FN satisfy each and every special requirement at the time s/he began working for the employer?

Or, if the FN satisfies all or certain of the special requirements by virtue of experience with the employer, was it in a job not substantially comparable to the PERM job?

Best Practice #11: Are requirements too special? (cont.)

Is there one good reason not to use a salary range?

Salary Range Essentials:

The bottom of the range is at least the prevailing wage The top of the range is at least the FN’s current salary The top of the range is at least the current salary of

others who hold the same position, and The top of the range is at least what you anticipate the

FN’s salary will be by the time the I-140 is filed.

Best Practice #12: Salary Range Basics

Easy peasy - just make sure to include it, and that it is correct.

Employer Contact Info.

Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?

The regulations require that the employer publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The language should give sufficient notice to interested persons of the employer's having filed an application for permanent employment labor certification for the relevant job opportunity. It is not required to mirror, word for word, the physical posting. In most cases, the physical posting language will be the most efficient way to electronically post the Notice of Filing; in others, the software program used to create the electronic in-house posting may be unable to accept all of the language used in the physical Notice of Filing. In every case, the Notice of Filing that is posted to the employer's in-house media must state the rate of pay and apprise the reader that any person may provide documentary evidence bearing on the application to the Certifying Officer. If there is insufficient space to include the Certifying Officer's address, then information as to where the address can be found must be provided.

In-House Media

Does every job duty have to be included? Each special requirement? Job location? Maybe not? Do you want to take that chance?

Prepare a text of the in-house media posting that includes the entire text of the Notice of Filing. Why not?

What about TV monitors?

Best Practice #13: Prepare Text of In-House Media Posting

You are asked “will this be filed as EB-2?”

The “right” answer boils down to “You tell me.” Why?

Random HOT Issues, Best Practices, Points for Discussion & Suggestions

If the job requirements are a Master’s degree plus 3 years of experience, or, in the alternative, a Bachelor’s degree plus 4 years of experience, will that be EB-2?

The answer is no. Why?

Are there any other issues with this formulation?

Random HOT Issues, Best Practices, Points for Discussion & Suggestions (cont.)

Is your soup perfect? It had better be.

Matter of Simply Soup Ltd., 2012-PER-00940 (Jan 13, 2015) (AILA Doc No. 15031765).

Employer inadvertently omitted a page from recruitment report. BALCA said CO should have allowed employer to submit it with the employer’s request for reconsideration since it was in existence at the time the application was filed and maintained by the employer to support the PERM application.

And if you believe THAT . . .


Harmless error – is there such a thing in the PERM world? Since the regulatory murder of Health America, probably not.

Best Practice #14 – don’t make any

mistakes!


Training, Certifications and Licensure If the job requirements include training,

certifications, licensure or other credentials, then the FN’s training, certifications, licensure and other credentials showing that s/he satisfies the requirements must be included in Section K.

See FAQs 7 and 8 under “Alien Experience.” No more forgiveness for labor certification

applications filed after July 28, 2014.


Life for “All Other” SOC Codes

In Matter of Meltwater News US1, Inc., 2014-PWD-0005 (July 16, 2014), BALCA found that an “IT Scrum Master” should have been classified as an Information Technology Project Manager (15-1199.09) rather than a Computer and Information Systems Manager (SOC 11-2021). BALCA noted that the IT Project Manager classification was “the most specific SOC code available in this case.” The fact that the description fell within an “All Other” category did not prohibit its use.


DOL has subsequently stated while the National Prevailing Wage Center (NPWC) first tries to identify a match that does not require the “All Other” category, “NPWC is not opposed to utilizing the ‘All Other’ category for prevailing wage purposes where appropriate, but it will only do so when there is no better match within the existing SOC definitions.”


Best Practice #15 – If the shoe fits, try to get Cinderella to put it on. If your job matches an “All Other” SOC classification, make the case aggressively and persuasively in your prevailing wage determination request.


New Audit Request #4

Requests “documentation explaining why U.S. applicants deemed ‘not qualified’ could not have attained the skills necessary to perform the duties listed in section H.11 during a reasonable period of on-the-job training.”


In practice, this means that even if the job requirements are “normal for the occupation,” there still must be a business necessity explanation explaining why each job requirement is essential in order to be able to perform the job competently.

If the employer has done that, then the employer has already answered the question why the job can’t be done by someone who doesn’t satisfy each requirement. And therefore the employer has already answered why Candidate X, who doesn’t meet certain of the job requirements, cannot perform the job.


Pre-Employment Drug Testing/Background Checks

Some SWAs force employer to answer yes or no whether these are required. If the employer answers YES, but does not include drug testing or a background check as a requirement on the labor certification application, that is considered imposing an additional requirement on potential U.S. applicants that was not required of the FN. E.g., Matter of Prosoft Associates, Inc., 2011-PER-01209 (Aug 3, 2012) (AILA Doc No. 12080741).



One approach - there is no necessity to submit copies of the SWA posting in response to an audit request. Per 20 CFR § 656.17(e)(1)(i)(A), the start and end dates entered on the application shall serve as documentation of this step. And in Matter of A Cut Above Ceramic Tile, 2010-PER-00224 (March 8, 2012) (AILA Doc No. 12030962), an en banc BALCA panel held that documentation of the SWA job order is not expressly and specifically required to be retained under the PERM regulations, which provide that “the start and end dates of the job order entered on the application shall serve as documentation of this step.” 20 CFR § 656.17(e)(1)(i)(A). So don’t.


BUT:

As long as there is nothing in the SWA posting to burn you, perhaps doing something you are not required to do in response to an audit -- going the extra mile -- may earn some brownie points with the DOL analyst.

DOL might be able to get the postings from the SWA.



Another approach – check SWA postings carefully. If drug testing or background checks are indicated as requirements, make sure they are listed as requirements on the Notice of Filing and are included as requirements on the 9089.


Recruitment Steps For professional positions, the regulations require

an additional 3 steps out of the 10 listed.

Why not 4 of 10? Why not 5 out of 10?

Best Practice #16 – give your labor certification a pleasing odor. Go the extra mile.


Best Practice #17 – Use H-14 to explain, explain, explain.

Some possibilities:

Please note also that the alien gained some of the required experience with the employer BUT IN A JOB NOT SUBSTANTIALLY COMPARABLE TO THE POSITION FOR WHICH THIS APPLICATION IS FILED, i.e., the positions do not require performance of the same duties more than 50% of the time, and a grid has been prepared by the employer documenting and attesting to this.

Will accept applicants with other suitable combination of education, training or experience.


Note to H-12: 'No' box checked only out of an abundance of caution due to continuing uncertainty over meaning of 'normal for the occupation.' Although the requirements exceed SVP of 7, and the employer can establish business necessity for its requirements, the requirements are 'normal' in the 'normal' sense of the word - this is a senior position requiring advanced theoretical knowledge and extensive and specialized experience and expertise, and the employer's requirements are in line with the requirements of other employers for similar positions.


Note to H-4-B/H-7: With respect to IT jobs for which engineering is listed as one of the acceptable degrees in H-4-B/H-7, reports from other lawyers indicate denials on the basis that agricultural engineering majors are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the position. However, the inclusion of engineering as one of the acceptable degrees is consistent with the requirements for similar U.S. government jobs, including IT jobs posted by the U.S. Department of Labor. E.g., Job Announcement Number: DE-12-DAL-MSHA-0034. Further, the mandatory course requirements for an agricultural engineering degree at major U.S. universities include the kind of intensely scientific and quantitative coursework that render such a degree a suitable academic background for IT work, as DOL itself has recognized by virtue of its own requirements for IT jobs.


Some possibilities: Note to F-4: The prevailing wage determination was

issued pursuant to a Towers Watson Survey, hence no level was indicated. However, entering 'N/A' is not an option in F-4.

Note to J-19: The alien satisfies BOTH the primary educational and experience requirements and the alternate combination of education and experience.

Note to H-8-C and H-10-A: The software development experience requirement is three years with a Master’s degree, five years of progressively responsible experience with a Bachelor’s degree.


Thank You!

Jeffrey M. ZimskindStevens & Lee

[email protected]

Rebecca R. Massiatte

JMO Firm, [email protected]

www.jmofirm.com

mailto:[email protected]

http://www.stevenslee.com/

mailto:[email protected]

http://www.jmofirm.com/

AILA TX/NM/OK Chapter Spring Conference PERM Labor Certification: Best Practices & Hot Topics April 23 rd -25 th, 2015 Sante Fe, New Mexico Jeffrey M.

Documents

beginning slide

right slide

tx slide

job title flexibility

chicago office

home office

advantage best practice

future best practice