Dramatic Changes To Labor Certification Proposed By Labor Department
This week the US Department of Labor released a set of proposed regulations that will completely overhaul the labor certification system that is the basis for most employment-based green card applications filed in this country. At the heart of the regulations is the new PERM program that will automate a great deal of the adjudication process for labor certification applications. The Department of Labor is promising that for most cases, applications will be adjudicated in less than 21 days.
The prospect for such fast turnaround times on these cases will no doubt be welcome by employers and immigrants. Under the current system, cases can drag on for years and even with the new Reduction in Recruitment system that was supposed to cut down on processing times, cases still drag on and on.
If the unveiling of the PERM system was the sole focus of the regulations, then employers would no doubt back these rules. But the Department of Labor has incorporated a number of controversial proposals that will no doubt draw considerable criticism during the sixty day comment period. And as the regulations currently stand, there will no doubt be protracted litigation challenging several of the provisions.
The following is a summary of the regulations. To see the regulations, go to http://frwebgate4.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=17177914940+0+0+0&WAISaction=retrieve.
SWA - State Workforce Agency. This is the term that has replaced the term State Employment Security Agency ("SESA")
PERM - the new automated labor certification system
PWD - prevailing wage determination which is decided by the SWA
PWDR - Prevailing Wage Determination Request form (ETA 9088) which is submitted to the SWA to seek a PWD.
CO - Department of Labor Certifying Officer
BALCA - Board of Alien Labor Certification Appeals
PWP - ETA Prevailing Wage Panel which hears appeals of prevailing wage determinationss
Overview of PERM Program
There are three major components to the PERM program:
1. prefiling recruitment
2. automated processing of most applications
3. elimination of the state employment security agencies in actually processing labor certification petitions
Like the reduction in recruitment program, the PERM program requires employers to recruit in advance of filing a labor certification application. Employers will now file applications directly with the US Labor Department's Employment and Training Administration. Under the current system, applications are filed initially with a state's employment security agency. These state agencies, currently known by the acronym "SESA" will now be known as State Workforce Agencies ("SWAs").
SWAs will only have one purpose under the new system - to handle prevailing wage determinations. After the SWA issues a prevailing wage determination, its role in the process is finished.
- Employers will be required to conduct mandatory and alternative recruiting steps. - Alternative steps can be chosen by employer from a list - Employers don't submit evidence with applications but have to create a file which can be reviewed in an audit - Applications are submitted on forms designed for automated processing - Forms flagged based on selective criteria as well as random criteria
2 New forms used in process o ETA 9089 - Application for Permanent Labor Certication o ETA 9088 - Prevailing Wage Determination Request
Form 9089 - the form has 56 questions, most of which are yes and no questions and attestations; the job description (duties and requirements) are not on this form anymore; they are on Form 9088, the prevailing wage form.
The forms are machine readable and will also be able to be completed directly on the web (much like the current system used for Labor Condition Applications in H-1B cases).
The Role of the SWA
The SWAs will now only handle prevailing wage requests. The SWA evaluates the job offer, including duties, requirements and geographic area and determines the prevailing wage.
Submission of the ETA 9089
Initially, depending on whether a fee is implemented, applications will be filed by mail or fax and then are subject to an initial acceptability check. If a fee is required, applications will be submitted by mail. But there can be no fee until Congress okays this. Eventually, the DOL expects that electronic filing will be available even if a fee is charged.
After the initial check, the computer reviews the application based on various selection criteria that will allow more problematic applications to be identified for an audit. Also, a certain number of cases will be selected randomly for auditing. If no audit is triggered, applications will be certified in a time expected to be less than 21 days.
If a case is selected for auditing, the employer will be notified and required to submit documentation specified in the regulations to verify information in the application. After that, the application and documentation will be forwarded to a Regional Certifying Officer (RCO) for review. The CO can do one of three things:
1. certify the application if documentation is complete 2. deny the application if documentation is incomplete, inconsistent with the employer's statements and/or attestations in the application 3. order supervised recruitment if there are questions regarding the adequacy of the test of the labor market
Supervised recruitment is very similar to the regular labor certification process available in the current system. But supervision comes from the ETA, not the state.
The proposed regulations contain some important modifications to Schedule A of the labor certification regulations. Under Schedule A, certain occupations are presumed to have a shortage of workers and it is not necessary to go through a recruiting process.
One important change proposed is for Schedule A nurses. Under the proposed regulation, only a permanent license can be used to satisfy the alternate requirement to passing the CGFNS examination. The DOL reasons that it does not want to help bring in nurses who won't eventually be able to practice. [This measure will no doubt draw substantial criticism because many nurses cannot qualify for permanent licenses until they are actually in the US with a Social Security Number (which is not available until a nurse is in the US with work authorization). This effectively would mean that foreign nurses could not work in a number of states and this could seriously aggravate the already severe nursing shortage.]
Aliens of exceptional ability - these applicants are moved from the special handling rules to Schedule A; no longer need to submit evidence of advertising or a statement from the union if normally used as a recruitment source. The INS will now have the responsibility to see if an applicant of exceptional ability qualifies for Schedule A.
To file for Schedule A, an employer submits to INS the filing fee (if the Congress grants authorization to charge a fee), the ETA 9088 Prevailing Wage form endorsed by the SWA, and the ETA 9089.
Schedule B, which lists occupations which will not be certified, is to be eliminated because, according to the DOL, it has not contributed to any measurable protection of US workers.
Expansion of Job Notice Requirement
Employers must post jobs in all "in house" media, including electronic or printed, "in accordance with the normal procedures generally used in recruiting for other position" in the employer's organization.
Ability to Pay the Salary
The DOL proposes to no longer require employers to document their ability to pay since this essentially duplicates the INS' finding in the I-140 application. DOL also notes that a job opportunity is not "clearly open to any qualified US worker" if the employer is not in a position to pay the worker.
The DOL notes that in last year's budget Congress stated that legislation would allow the DOL to collect fees for labor certifications. There is no bill yet, but the proposed rule addresses how the fee would be collected if legislation passes. Among other things, there would be a $30 fee for returned checks and applications would be returned denied or an approved case revoked if a check is returned after approved.
If an application is returned incomplete, an employer can request a refund of the fee or resubmit without having to pay again.
Fees submitted for Schedule A and sheepherder cases will be sent to INS.
If no legislation is passed by the time the final rule is published, the fee provisions in the proposed regulations will not be included.
PERM Filing Procedures
Employers submit ETA 9089 and endorsed 9088 form to the designated ETA application processing center. Supporting documents will be kept on file with the employer and not submitted. The employer will submit documentation if selected for an audit.
SWAs only provide Prevailing Wage Determinations (PWDs) and do so before filing the labor certification application. The new ETA Form 9088 will also be used for H-1B and H-2B applications. The SWA issues a PWD on the new form and sends it to the employer.
The SWA issues a PWD on the new form and sends it to the employer
The computer screens the information on the form
Incomplete applications are returned
Applications will be 1) certified, 2) denied, or 3) flagged for auditing
Processing times for cases not denied or flagged for audit should take no more than 21 days. If selected for auditing, employers will have 21 days to respond or face denial. [Note that this required time for employers to respond is much faster than under the current system]
Applications are date-stamped; rejected applications will not be date-stamped to "minimize the administrative burden and to discourage employers from filing merely to obtain a filing date." [This provision could have a major impact on Section 245i filings where skeletal labor certification petitions may be filed in order to establish a priority date and preserve eligibility under the program. The INS and DOL have previously said such filings were okay and actually took a flexible approach in order to ensure that all people who wanted to take advantage of 245i had the opportunity to do so. This provision seems to signal a shift to a much harsher policy at DOL].
If an employer withdraws and resubmits a case, the filing date will be lost.
Employers need to test the labor market at prevailing wagers and working conditions during the six month period preceding the filing of the application.
Recruitment is a mix of mandatory and alternate steps
Recruiting steps differ depending on whether one is in a "professional occupation" or "non-professional occupation". Professional occupations require a bachelors degree or higher. The proposed regulations contain a list of these occupations in Appendix A. Nonprofessional occupations are jobs for which bachelors degrees or higher are not a usual requirement. For these jobs, two newspaper ads and job order with SWA are enough.
1. place job order with the SWA 2. two ads in a Sunday edition of a newspaper of general circulations most appropriate to the occupation and the workers likely to apply for the job 3. placement of ad in jourËŕ :in lieu of one Sunday ad if position involves experience and an advanced degree.
The DOL is concerned that employers are currently placing ads in newspapers with the lowest circulation that are not likely to attract workers in a particular field so that is why it uses the term "most appropriate".
Mandatory steps must take place at least 30 days, but not more than 180 days, before the labor certification application is filed.
Ads must be placed at least 28 days apart.
Employers are also required to select three additional pre-filing recruitment steps from any commonly used professional recruitment channels such as job fairs, web sites and employment agencies. One of the steps can take within 30 days of filing the labor certification.
Non-professional Occupations - Recruitment between 30 and 180 days before filing of application; must place job order with SWA, advertise in two ads in Sunday editions of newspaper of general circulation with at least 28 days between ads.
The requirements are similar to the current rules except the ad must
1. identify the employer
2. direct job seekers to the employer and not the SWA
3. provide a description of the job and the geographical location that is sufficient to fully inform US workers of the specific job.
4. the wage listed in the ad should exceed the wage on the PWDR
The Employer must keep documentation of recruitment efforts.
In cases flagged for audits, recruitment reports will be required as is the case in the current system. A key difference is that the DOL Certifying Officer may request the resumes or applications of the US workers rejected sorted by the reason for rejection stated in the recruitment report.
US candidates cannot be disqualified for failing to meet one of the job requirements if the worker, by education, training, experience or a combination thereof, qualifies by being able to perform in the "normally" acceptable manner" the duties involved in the occupation. Also, an employer can't reject if the worker could acquire the skills during a reasonable period of on the job training, the skills necessary to perform as customarily performed by other US workers similarly employed. [This is one of the most controversial sections of the proposed regulations. Critics are already asking how the DOL intends to determine what is reasonable. Expect this to be a focal point for litigation.]
Business Necessity Standard and Job Duties
- Employers must show requirements are normal. - The business necessity standard is being eliminated. The DOL says is not in a position to review these cases because it lacks expense and it believes employers are simply manipulating the DOL in most of these cases. An exception is created in the case of foreign language requirements. The proposed rules provides that in general the job opportunity's requirements cannot exceed the SVP level shown in the O*Net Job Zones. [This section is also drawing intense criticism. First, as the process for getting a labor certification is so time-consuming and expensive, why would employers bother "manipulating" the system instead of hiring US workers if US workers were readily available? Second, the DOL says it lacks the capability to determine if job requirements are truly a business necessity. But is it not the job of the DOL to have this expertise. This is the agency that, after all, authors the Dictionary of Occupational Titles, the Occupational Outlook Handbook and the O*Net database. Of course the DOL has the expertise to determine if job requirements are legitimate.]
Exceptions to the abolition of the business necessity requirement -
- Previous employment of US workers -
- employer must have had a US worker who performed duties and met the job requirements within two years of filing the job application - employer must be able to document this by showing o name of former employee o job description o resume o payroll records o letter from previous employee o previous recruitment documentation
- Other requirements are normal to the occupation
- must show requirements "normal to the occupation and are routinely required by other employers." - Evidence o Copies of state and/or local laws and regulations o Articles o Help-wanted ads o Employer survey - Examples - licenses, typing speeds, ability to lift a minimum weight
- Foreign language requirement
- previous standard largely being continued - "foreign language requirement cannot be included merely for the convenience of the employer or because it is a mere preference of the employer, co-workers or customers." - Language requirement can be based on the nature of the job (e.g. translator or worker with the need to communicate with a large majority of employer's customers) - Evidence o Number and proportion of clients who cannot communicate in English o Detailed explanation of why frequent contact with and communication with customers who cannot communicate with English and why it is reasonable to believe that communication in English cannot happen.
- Combination occupations
- 2 changes to the existing rules o rule now refers to "combination of occupations" not duties since most jobs require a combination of duties o documentation for need of combination of occupations requires two instead of three alternate forms of documentation - evidence o US employee has done the work within two years prior to filing o Workers customarily perform combination of occupations in the area of intended employment - Combination jobs are classified and prevailing wages are determined in the following order: o Highest paying occupation o Highest skilled occupation o Job that requires largest percentage of time
Actual Minimum Requirements
- Employers cannot require experience the alien gained working for the employer in any capacity, including working as a contract employee
- current rules says it is permissible to allow this experience if the experience is gained in a dissimilar job or in instances where it is no longer feasible to have US workers
- The DOL says in two decades is can see no difference in protecting US workers just because jobs are dissimilar or because employer cannot train anyone.
- Also DOL thinks employers are by and large manipulating the system to the disadvantage of US workers
[This is another section that is drawing considerable criticism. The DOL makes very strong allegations regarding massive manipulation and indicates there is no evidence to back up its claim regarding the lack of protection of US workers.]
Definition of employer
The term "employer" is broadly drawn to include predecessor organizations, successors in interest, parents, branches, subsidiaries and affiliates whether located in the US or not.
Alternative Experience Requirements
The regulations propose to eliminate the use of alternative experience requirements as a means of qualifying the employer's job opportunity.
The same logic is used here as in the proposal to eliminate the business necessity requirement.
The DOL notes that most of the time, alternative experience is gained with the employer in unskilled occupations and this is just a way for employers to circumvent this usually oversubscribed category.
Conditions of Employment
- current regulations do not address this topic (including live-in household requirements, split shifts, etc.)
- unusual working conditions can be justified if they are normal to the occupation in the area and the industry
- new regulations incorporate Board of Alien Labor Certification Appeals ("BALCA") standards for live-in household domestic
- live-in requirements okay only if the employer can demonstrate that the requirement is essential to performing in a reasonable manner the job duties as described by the employer and there are not cost-effective alternatives to a live-in household requirement. Mere employer assertions are not enough.
- examples of documentation
- evidence of two working parents and young children in household - evidence of erratic work schedules requiring frequent travel and a need to entertain clients on a short notice - travel vouchers, written estimates of costs of alternatives such as babysitters and or a detailed listing of the frequency and length of absences of the employer from the home.
- The DOL Certifying Officers may determine whether there are other appropriate sources of workers from which the employer should recruit. The CO could designate other sources of recruitment. If there has been a layoff in the area of intended employment within six months of filing the application, the employer must document consideration of potentially qualified US workers involved in the layoff and the results of such notification.
Alien Influence Over the Job Opportunity
The proposed rule incorporate BALCA decisions that allow COs to determine that a job opportunity is not bona fide in the cases of a worker who has a documented role in, or close personal relationship with the employer such that the employer is unlikely to replace the worker with a qualified US applicant.
The regulation lists several factors to be considered including whether the alien
- is in a position to control or influence the living decision - is related to the corporate directions or officers - was an incorporator or founder of the company - is involved in the management of the company - is one of a small number of employees - has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and - "is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien."
[This is a section of the regulations that is likely to be heavily litigated. Most contentious may be the statement regarding suspicion if the company does not have a large number of employees. This would seem to mean the DOL will apply a tougher standard to small business owners, something that also may be unpopular with politicians who are sensitive when the government acts to hurt small business owners. Also, the statute does not bar managers from getting a labor certification and this section seemingly makes labor certifications for managers suddenly much tougher.]
Special Handling of College and University Teachers
- No more special handling rules, but teachers would now have a separate section which will mean cases are handled largely in the same way as in the current system
- Key difference is that the CO can request documentation that the alien was more qualified than any US worker.
- Cases filed under revised basic process; mostly the same as current rules
- A few items on ETA 750 Part A dropped, but employers would still furnish information if audited including a description of the residence, the number of individuals living in the house and their ages and a statement regarding free private room and board.
- The old "Notice of Findings" will be a thing of the past. Instead, cases will be selected for an audit. Audit letters will be computer-generated, standardized documents stating the evidence that must be submitted by the employer. The letter will specify the type of documentation that the employer would need to submit.
- Employers will have 21 days to respond to the audit letter and not extensions are permitted. Failing to respond will result in 1) a denial, 2) a finding of a material misrepresentation of attestations and 3) a finding of a refusal to exhaust administrative remedies so administrative review procedures would not be available.
- If an employer fails to provide required documentation or the CO determines that there is a material misrepresentation for any reason, the employer may be required to conduct supervised recruitment for a period of two years. - After responding to the request for evidence, the CO can request more documentation or require supervised recruitment; the second request for evidence might request certain limited information not specified in the regulations but which could be readily available to the employer.
The CO can order post-filing recruitment in cases selected for audit or where "serious questions arise about the adequacy of the employer's test of the labor market."
- Recruitment sources - tougher advertising rules than pre-filing rules
- CO must approve ad in advance and instruct where it will be placed.
- responses directed to the CO
- ad must have minimum job requirements
- CO can designate other sources of workers
- The recruitment report in a supervised recruitment follows the same basic rules except employers must now show worker cannot be restrained in reasonable period of time. "Rejection of such workers based solely on lack of familiarity with one particular subsidiary job duty will not be permitted."
Appeals to BALCA
- Only employers will now be able to request BALCA review
- Time to request review reduced from 35 to 21 days.
- BALCA will no only be able to affirm or reverse decisions, but will not have the power to remand.
Substitution of Aliens
Proposed rules formally reinstates pre-1991 rules allowing for substitution of aliens; court cases invalidated a 10/23/1991 regulation limiting the practice.
Revocation of Approved Labor Certifications
- Proposal to allow COs to revoke labor certification within one year of date the labor certification granted or visa number becomes available whichever comes first. The revocation must be done in consultation with National Certifying Officer; the labor certification must have been "improvidently granted."
- appeal to BALCA possible if the employer timely files rebuttal evidence to the CO's Notice of Intent to Revoke.
- The proposed regulations attempt to standardize the process of determining a prevailing wage. Employers must use the new PWDR form. The form requires
- location of job (city or county and state) - title of job - job duties - education, training and experience required
- The SWA reviews and determines occupational classification and area of intended employment. The SWA then enters determination on the form and returns it endorsed to the employer.
- The SWA determination includes a unique tracking number plus
- occupational code assigned to job - wage - source of wage information - level of the skill of the job - date upon which determination was made
- Employer can submit alternate wage survey or other source data for which the employer wishes the SWA to approve as a determinant of the prevailing wage in response to the request.
- The PWD will be valid from 90 to 365 days from the date on the PWDR. At least one recruitment step must take place during the validity period.
Collective Bargaining Agreements
- SWA must use collective bargaining agreements as the prevailing wage source if there is such an agreement.
- The provision requiring the use of the Davis Bacon Act and the Services Contract Act wage rates if they are available is being deleted.
Elimination of 5 Percent Variance
"Due to the comprehensive nature of the [OES wage] survey and the resulting degree of statistical precision with regard to the results thereof, [the DOL] believe[s] that it is no longer necessary to provide the 5% variance authorized under the existing certification regulations… and the H-1B regulations."
Employer-Provided Wage Data
- The SWAs are directed to consider the use of employer-provided wage data in the absence of a PWD obtained through a collective bargaining agreement between the union and the employer.
- If the employer provides wage data, the employer should include information about the survey methodology including
- sample frame size and source - sample selection procedures - survey job descriptions
- The SWA's job is merely to determine if the employer-provided survey is adequate and acceptable. The DOL will give the SWA guidance in this regard. The SWA cannot reject an employer-provided survey just because it thinks the SWA wage is more accurate. As long as the employer-provided wage is acceptable, that is the wage to be used. If the SWA finds that the employer wage data is not acceptable, that is the wage to be used.
- If the SWA finds the employer wage data is not acceptable, the SWA must include specific reasons and provide the employer with the appropriate wage rate as derived from OES survey data. Employers will get one cance to submit additional data and the SWA can accept or reject (with the reasons for rejection). After rejection, the Employer can file new approval or request.
Use of Median
Employers will be allowed to submit alternate sources of wage data that provide a median wage rate for a job. Currently, the prevailing wage rate is the arithmetic mean rate of wages, not the median.
Definition of Similarly Employed
- Under current regulations, the survey area should be expanded or similar jobs considered only if there are no employer of workers with substantially comparable jobs in the area of intended employment other than the employer application. Under new rules, the SWA can expand the area included in a survey whenever a representative sample of workers with substantially similar jobs cannot be obtained, even if there are one or more other employers in the area.
- Transition of H-1B workers form inexperienced to experiences - Where a survey that is the basis for a prevailing wage determination contains more than one wage rate for the classification, the employer is required to pay the H-1B workers at least the applicable wage for the work performed. As the workers gain experience, the prevailing wage rises in accordance with the survey.
- Appeals of prevailing wage finding will be permitted.
ETA Prevailing Wage Panel
- A new panel replaces two existing panels responsible for handling complaints regarding wage findings in non-immigrant applications as well as labor certifications. The ETA Prevailing Wage Panel (PWP) will handle all complaints arising from the PWP process. Goal is to increase consistency of the decisions and establish clearly defined precedents.
- A review of the PWD must be requested by the employer within 21 days of the PWD being issued. The appeal is sent to the SWA which then sends it to the PWP along with documentation from the case. The Employer is copied on this and can suggest additional documents. If the PWP issues a denial of the appeal, an employer will have 21 days to request review by BALCA.
About The Author
Gregory Siskind is a partner in Siskind, Susser, Haas & Devine's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.
Amy Ballentine is an associate in Siskind, Susser & Haas's Memphis, Tennessee office. She graduated Cum Laude with a Bachelor of Arts degree in English Literature from Rhodes College in 1994. While in law school at the University of Memphis she was a member of the law review staff as well as a published author. She also worked with the local public defender’s office in death penalty cases. In May 1999, she graduated Cum Laude from the University of Memphis Law School. She is a member of the American Immigration Lawyers Association. She can be reached by email at firstname.lastname@example.org
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.