Amending Labor Certification Requirements: A New Paradigm And A Review Of Basic Principles
With the influx of re-test letters and remands triggered by the Ziegler memo of May 28, 2002, entitled "Clarification of RIR Policy in an Environment of Increased Layoffs", one very important issue has surfaced: Is it possible to amend the contents of the labor certification in connection with placing a "Re-test" ad at the DOL regional level, or back at the state level if the case gets remanded for supervised recruitment?
Many attorneys have argued that Reduction in Recruitment (RIR) job requirements were pared down and special requirements were avoided because GAL 1-97 contained a provision which required the local office to forward to DOL cases containing special requirements. There was great confusion whether the insertion of special requirements would derail an RIR application. Various state and regional offices often advised employers to prepare these applications devoid of special requirements. The common perception was that an employer could infer the existence of special requirements and disqualify workers based on the inability to perform basic job duties as delineated in item 13 of the ETA, Part A form. Consequently, in all fairness to those who followed DOL's informal guidelines and submitted applications that lacked the requisite experience or special skills, it should be proper to allow one to amend the job requirements prior to re-testing the job opportunity. While it seems clear and fair that amendments should be allowed in connection with a Ziegler re-test or a re-test pursuant to a remand to the state for supervised recruitment, the thornier issue is how broad should be the scope of the amendments and what procedures should be followed in connection with amending an ETA. What follows is a Q&A discussion of relevant factors, both substantive and procedural, as well as a discussion of the various types of amendments that one might consider submitting.
1. Is there BALCA support for the amendment of job requirements prior to or in connection with advertising the job opportunity?
Yes, see Matter of Electronic Development Corporation, 91-INA-343, 1992 WL 384055. This case is amazingly pertinent. The employer filed a labor certification for an Electronic Engineer with very vague job requirements. It advertised the job with these job requirements. The CO denied the certification for unlawfully rejecting qualified applicants for failing to meet unstated job requirements. The employer acknowledged that it had improperly filled out the ETA 750A form and pleaded for a second chance to amend the requirements. The CO allowed the employer "to amend the ETA form, items 13-15, by enumerating those requirements which had been used as the bases for rejecting the U.S. applicants (i.e. digital, analog and computer systems experience, and synthetic design capability). Furthermore, the CO clearly and specifically directed the Employer to conduct a new recruitment, including a new job order, readvertisement and reposting, and to document the results thereof."
Instances where BALCA viewed amended job requirements with disfavor occurred when it was clear that the employer acted in bad faith and screened job applicants against unstated job requirements. (See e.g. Matter of Charu Gems, Inc., 2000-INA-275, 2001 WL 427939; GPF Systems, Inc., 94-INA-301, 06/30/95; Ronald J. O'Mara, 1996-INS-113, December 11,1997; A. Smile, Inc., 89-INA-1, March 6, 1990) The TAG at page 53 states that "The employer should screen applicants against the stated requirements in the job offer and should not impose additional requirements during interviews."
With an amendment of the job requirements pursuant to a "re-test" ad, the employer is acting in good faith and is avoiding the "bait and switch" deception of screening U.S. applicants against new unstated job requirements.
2. Under what circumstances does amending an ETA Part A have an adverse impact?
If the amendment triggers a change in the DOT or SOC code, the DOL has taken the position that the application might be cancelled and be considered as a new application with a new priority date. Some regions have continued to process the case but have given the case a new filing date, and other regions have put the application at the end of the queue. If possible, one should avoid making such substantial changes to the job description that result in the recoding of the job opportunity.
3. If years of experience, education, or special skills are amended, will a new prevailing wage determination be necessary?
Increasing the years of experience and the educational level might clearly trigger an increase in the prevailing rate of pay, thereby necessitating the submission of a new prevailing wage determination as well as an employer amendment in duplicate to Item 12, Rate of Pay, ETA Part A. Naturally, if the wage level is already at the OES Level 2 rate, there will be no impact to an augmentation of the experience or educational requirements. The more complicated question is whether the addition of special skills should trigger a wage increase. In California the LMID Unit that processes prevailing wage determinations does not take into consideration item 15 special requirements in making a prevailing wage determination; it merely considers the job duties, education and years of experience. Nevertheless, out of an abundance of caution, it might be advantageous to provide a new, current wage determination if there is any doubt. Although many of the impacted labor certifications were submitted over two years ago, not all wages for various occupations have increased, and with the release of the OES 2004 wage survey, the wages might even decrease. In regions such as California, the use of private, published surveys is commonly accepted. One can strive to find an appropriate private wage survey and compensation level upon which to base a new prevailing wage determination.
4. Can item 15, Other Special Requirements, be amended?
Yes, but one should ensure that along with the employer amendment to this item, the employer provides a justification as to why the special requirements are essential to the performance of the job duties. If mention of the special requirements is not articulated in the employer's job description in item 13 of the ETA, Part A, it is advisable to amend item 13 as well by adding a few sentences that further detail how the specific software, or operating system is employed.
It is beyond the scope of this Q&A to elaborate on how to justify special requirements but practitioners should be aware that the latest edition of the Occupational Outlook Handbook (2002-2003) and the ONET provide a wealth of information regarding customary knowledge, skills, and abilities that are essential to performing the basic job requirements. There is generally no need to provide extensive documentation about essential job skills for high-tech positions. Perhaps the major exception is the requirement of a foreign language which does call for extensive documentation.
5. Must one demonstrate that the alien met the additional amended requirements at the time the labor certification was filed?
Yes, ETA Part B, item 12 should clearly state the alien's qualifications for the job; item 15, work experience, should indicate in which position the alien acquired the special skills or years of experience. Item 14, Documentation of the Alien's Job Requirements, is not typically delineated and attached to the ETA; rather reference is made to the fact that relevant experience letters, diplomas, licenses, certificates will be presented to BCIS with the I-140 petition. If the ETA Part B does not provide the data necessary to establish the alien's qualification for the amended job skills, one must ensure that an amendment to the forms is executed by the alien. Amendments should provide: the form item number, state the amendment, and provide for a signature and a date. In Region VI amendments can be easily facilitated by preparing an attachment with the relevant data. In other regions, executing an amendment is more laborious because the forms are returned to the employer to amend and initial.
6. Can an employer amend the years of experience and require experience gained by the alien with the same employer?
Years of experience acquired by the alien in lower level or distinctly different jobs can qualify an alien for the job offer if all the requirements of Matter of Delitizer Corp, 91-INA-053, 1991 WL 204497 (formerly 88-INA-482, 05/09/90, en banc), the leading BALCA case involving experience gained with the same employer, are met. However, this type of amendment will require careful review by DOL. Possibly, DOL may feel that the documentation is strong and persuasive, and readily accept the amendment and Delitizer documentation, or it might issue a Notice of Deficiency, or perhaps even remand the case for resolution of this issue by the SWA. If the case is already at the SWA, the state specialist can readily review this type of amendment prior to placing a new ad.
7. Is there a requirement to re-post the job opportunity?
Yes, if the duties, job requirements, education or salary change, a new ten day posting is required, and a summary of the results of the posting, and when and where it was posted.
8. Procedurally, at what point in time would an amendment be submitted?
In a recent case involving a Ziegler re-test ad, where the amendment to item 15 was clearly appropriate since the specific software was already described in item 13 of the job duties and listed in item 12 of the ETA Part B as a special skill set that the alien possessed, the amended requirement was simply placed in the new ad. The employer used it as a criteria to assess U.S. applicants. Along with the recruitment documentation, the employer amendment to Item 15 was provided, along with the employer's justification of the special requirement, and the attorney's cover letter described the legal basis for the amendment. A specific request to amend prior to placing the ad was not done. This was risky but the legal basis seemed quite clear, and indeed the application was certified. Absent clear guidance from DOL on this point, attorneys may decide to act with more caution and make a request beforehand. However, it is clearly more expedient, saving everyone time and resources, not to have to make a request to amend beforehand. Otherwise, it is unclear how swiftly DOL will be able to process such requests for amendments and also handle the increased responsibilities resulting from re-tests and remands.
In contrast to an amendment at the region pursuant to a Ziegler Re-test letter, an amendment that occurs at the SWA is procedurally quite easy. Upon notice by the SWA that supervised recruitment will commence, the amendments are sent to the SWA who can issue an assessment notice, if necessary. The employer will learn if there is a deficiency with the amendment, such as a requirement to amend the wage, or to address whether the alien meets the amended requirements; or any other relevant issues.
9. In summary, what are the do's and don'ts that one should be aware of when amending the ETA?
- Ensure that the alien meets the amended requirements at the time of filing the labor certification, and if necessary, amend the ETA Part B form to establish the alien's qualifications.
- Ensure that special requirements are justified and, if necessary, augment item 13, the job duties in order to delineate the specific skill set needed to perform the job.
- Ensure that a new prevailing wage determination is obtained beforehand if there is any question as to whether the wage rate might be impacted with the amendment.
- Re-post the job opportunity for ten days and submit the new posting results.
- Remember that all employer amendments (items 12, 13, 14, and 15) must be submitted in duplicate on an addendum referencing the ETA form number and the text of the amendment. It must be signed and dated by either the employer for a Part A amendment, or the alien for a Part B, items 12, 13, 14, or 15 amendment. If the employer signatory is different than the original signatory, secure a new G-28.
About The Author
Josie Gonzalez is the managing partner of Gonzalez & Harris, a Pasadena, California based immigration law firm. [corrected 11/18/03 Ed.] She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. She served for nearly ten years on AILA's Board of Governors; has contributed as Chair, Co-Chair & member of various national liaison committees; and served as Editor-in Chief for the David Stanton Manual on Labor Certification (1998). In 1999, she was recognized by AILA for "Excellence in Advancing the Practice of Immigration Law", and was included in "The Best Lawyers in America."
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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