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10 Key Questions On PERM

by Gary Endelman

Gary Endelman

Now that we have digested the PERM regulation to learn what it says, perhaps we can take a step back, draw a deep breath, and try to drill down to a deeper level of understanding. One way to start is to look at some key questions that a closer reading of PERM conjures up. No one will have all, or even most, of the answers now, not even the architects of PERM within DOL itself. Yet, by going through this exercise at such an early stage, the agenda for further examination and future inquiry by DOL, the bar and the business community may begin to take shape.

PERM is the last best hope for labor certification to avoid total collapse. DOL knows that and has staked the future of the program on PERM's success. Yet, many attorneys are confused right now and it is not hard to figure out why. Consider some of the following sources of concern:

1. PERM discourages re-filing
2. Who in their right mind would withdraw a pending case?
3. Can you have two bites at the apple?
4. Does a SESA/SWA job order ALWAYS preclude PERM?
5. Does PERM forget about the backlog?
6. Does business necessity really survive under PERM?
7. If you lose at PERM does the 7th H-1B year still survive?
8. Labor Certification Revocation and AC 21 adjustment of status portability: Can't we all learn to get along?
9. Are "occupations" and "job opportunities" the same thing?
10. How much alternative experience should a fella get anyhow?


The refiling instructions set forth at 20 CFR 656.17(d) on page 77392 of the December 27th Federal Register discourage the refiling of existing cases. There is no way for an employer to know if the conversion request will be accepted. There is no way for a lawyer representing that employer or the alien beneficiary to be sure that the previously filed case was PERM compliant. They can only compare the PERM criteria with what was previously done, but they do not know that the original filing date can be retained. If they are wrong, not only will PERM be unavailable to them, but the original priority date is gone! How many employers are willing to take that gamble? Perhaps in a situation where the child of the beneficiary is aging out, given DOL's firm stand against expediting. Yet, in many cases, employers will be reluctant to risk all, not being able to predict with any degree of certainty what will happen.

DOL is understandably concerned over unscrupulous employers or aliens who filed bogus labor certifications from being able to take advantage of them. This concern is typified by the hostility towards substitution of beneficiaries found in the preliminary comments. DOL knows that many of the 315,000 pending cases were filed before the April 30,2001 deadline for 245(i) eligibility. Yet, is this a reason to impose a Hobson's choice on honest employers and deserving aliens who had no interest in 245(i)? Is this not an example of abuses connected with illegal immigration placing an undue burden on legal immigration?

The PERM regulation requires that most mandatory and alternative advertisement occur between 30 and 180 days before filing. This means that the recruitment in most, if not all, pending RIR cases will be stale and cannot be used! Forcing employers, especially smaller ones, to re-advertise and re-recruit requires an enormous expenditure of time and money when the outcome is far from assured. This is a disincentive for employers to refile under PERM and will contribute to a continuation of the backlog. Employers who wish to "convert," a word that the PERM regulators scrupulously avoid, should not be forced to start all over again. Why not allow them to take advantage of the advertisement and recruitment undertaken at the time of original RIR submission? Why impose additional legal fees as the price of PERM participation? Clearly, this would require a regulatory change and it is obvious that DOL wants to make a clean break with the past. Therefore, why not allow a limited transition period, perhaps six months, when this could be done? The 90 day advance notice of PERM implementation needs to be expanded so that employers are encouraged to jump into this brave new word, not frightened away.

2. Who in their right mind would withdraw a pending case?

In a recent AILA teleconference on PERM, noted immigration attorney Ester Greenfield posed much this same question, though in a more thoughtful and dignified manner. After all, there is much to lose, and not a whole lot to gain, she rightly noted. What if an employer pulls a pending case, plunges into a new round of advertisement and recruitment, and this time finds a qualified worker so that no filing under PERM is possible? Now, that poor employer, who already went through this same exercise once before, has nothing! Even if the prior RIR case was done in good faith and uncovered no qualified applicants, he or she is out of luck. For this reason, and especially since filing under PERM is considered an abandonment of the prior case, no employer in touch with reality is going to withdraw first and then refile under PERM within 210 days. That being so, why do we have that option in the regulation? What purpose does it serve? Beats me.

3. Can you have two bites at the apple?

Immigration maven George Newman wondered this aloud at the same AILA teleconference noted above. Past DOL policy and practice says NO! Clearly, PERM did not consider this possibility, but a close parsing of the plain language of 656.17(d)(ii) may lead an Article III judge to rule differently. Consider what the reg says, namely that filing under PERM is deemed to be a withdrawal of the original application when the employer states his desire to use the original filing date (emphasis added). So, a literal reading would suggest that, if you file under PERM but do not ask to use the original filing date, then the original application should not be deemed to be withdrawn! Presto! Two bites at the apple. Doubtless, DOL is not going to want to be held to the awkward language of its own rule and may try to wish this away through administrative interpretation. However, this would almost assuredly trigger serious litigation.

4. Does a SESA/SWA job order ALWAYS preclude PERM?

In 20 CFR 656.17(d) on page 77392 of the Federal Register PERM regulation, we learn that there can be no PERM upgrade if a job order was placed for a pending case before PERM takes effect on March 28,2005. On first glance, this would appear to throw out many RIR cases where the employer, either to show good faith, to demonstrate diverse recruitment or simply to comply with state procedures, places a job order with the SESA/SWA. Does this preclude PERM? Maybe not. Look at the comments on page 77342 that speak of such placement with reference to current 20 CFR 656.21(f). If you go to this regulation, you will see that the "local office" has to "prepare and process an Employment Service Job Order" using the information in Part A of ETA 750. The SESA/SWA, not the employer, must then place the job order "into the regular Employment Service recruitment system." So, in an RIR case, where the Employer acts, where there is no supervised recruitment of any kind, where the SESA/SWA is purely a passive bystander, there should be no ban on PERM. This needs to be clarified by DOL.

5. Does PERM forget about the backlog?

It appears as if DOL has made a strategic decision to copy the model from USCIS and concentrate on speeding up future cases while whittling away at the backlog. This is the vision of Ombudsman Prakash Khatri and it is this vision that animates PERM. As noted above, few, if any, pending RIR cases will have recruitment that is not stale- that is to say, advertisements placed within 180 days of the March 28th effective date. Even if they were timely, cautious employers may be loath to risk the loss of an old priority date by seeking to refile under PERM when the job opportunity may not be deemed to be identical or when certification is subject to revocation at any time for basically any reason in the sole estimation of the PERM Certifying Officer. Moreover, as will be discussed at greater length below, if the old priority date is gone and PERM is withheld, what happens to the 7th year H-1B extension? Gone.

These RIR cases will largely be relegated to the tender mercies of backlog reduction, which is clearly meant to work in tandem with PERM, but quietly and out of the spotlight. The future belongs to PERM and the past to the backlog reduction centers. When taken in combination with DOL's refusal to expedite cases, this will mean that most of the backlog will remain stacked up for a long time to come. Children will age out before they can take advantage of the Child Status Protection Act since it is impossible to file an immigrant petition on Form I-140 for those categories not exempt from this requirement. The backlog reduction centers are designed by DOL to be funded for only two years. What then? We can only assume that the backlog will be certified or denied away. In either case, the principle of individualized adjudication and supervised recruitment for specific job opportunities, concepts that are at the core of the present labor certification system, even though neither was envisaged nor mandated by Congress in 1965 when it changed labor certification from a passive to an active system, are fatally compromised.

Adoption of the Khatri model will enable top DOL brass to come before Congress and parade statistical evidence that PERM is working. Hopefully, no one will notice the looming backlog in the background. This is all smoke and mirrors. The PERM centers in Chicago and Atlanta will rapidly backlog. By 2007, the PERM backlogs will be largely indistinguishable from todays with the only major difference being the elimination of regional variations, something the immigration bar has long advocated. The only discernable strategy at the Backlog Centers is to deny the backlog under the pretext of Center Receipt Notification Letters that ask even Fortune 100 corporations to prove they exist. It is not likely that the contractor staff without a deep background in, or knowledge of, labor certification will be able to process the backlog with anything that even remotely approaches the old Regional staff, something no veteran immigration practitioner ever thought of saying before! The use of CRNLs will ultimately backfire and provoke both employer resistance and complaint that will lead either to congressional intrusion, class litigation or both.

6. Does business necessity really survive under PERM?

DOL's concern over fraud permeates PERM. They should be concerned. DOL does not have the capacity, the political will, or the money to audit most labor certifications. This leaves the PERM system dependent on the good will and honesty of those who use it, a necessary but uneasy state of affairs. This comes at a time when the political imperative to move lots of cases through the system at full throttle may well be irresistible.

The immigration bar rightly screamed bloody murder when the notice of proposed rulemaking eliminated the doctrine of business necessity. DOL listened, it seems. Business necessity is back as articulated by the BALCA in Information Industries. Do not celebrate so fast! Who is going to be honest or brave enough to use it, particularly in a web-based submission when back-up justification is not part of the form? Question No 12 on Section H of the ETA 9089 asks whether the job requirements are "normal" for the occupation. More on that later. Now, just consider that, if they are not, the employer must be prepared to justify them on grounds of business necessity. A blind man could see that anyone who checks the "yes" box to this question will be audited. So, the price of invoking business necessity will be a DOL audit, thereby dashing any hopes of a quick decision, and negating PERM's raison d'etre. While the audit procedures outlined in 20 CFR 656.20 require an employer response to the audit letter within 30 days, with one possible 30 day extension tacked on, there does not appear to be any time deadline by which the Certifying Officer must render a decision on the audit.

This puts honest lawyers and conscientious employers in a quandary. Do they admit that their job requirements are "abnormal" but necessary, knowing that an audit is coming, or do they abandon business necessity as interesting theory but impossible practice? The irony, of course, is that dishonest filers, be they lay or lawyers, will face no such moral dilemma. They will simply check "No" to Item No.12, secure in the knowledge that their odds of skating through without further complication run strongly in their favor. Chances are that DOL will look to the IRS system of random audit control and implement a sophisticated profiling database that may favor larger employers at the expense of their smaller brethren, who are the true engines of job creation. Even here, however, it would not be surprising if even corporate giants get audited since it is impossible to control the forces that PERM will unleash.

PERM does nothing to address the fundamental reason for fraud in the first place, namely employer control over the sponsorship process that ties a particular alien to a specific employer. DOL cannot act on its own and Congress shows little inclination to get involved. No votes or campaign cash to be mined there. Only adoption a point system which focuses on the permanent characteristics of the alien, as opposed to the temporary needs of a single employer, can liberate aliens from the position of subordination and dependency whose existence make fraud possible. Moreover, since the benefit gained allows for perpetual residence in the USA, why should the transitory requirements of any employer, as opposed to the alien's immutable talents, be the fulcrum on which the entire system rests? The notion of portability has found acceptance in the H1B and adjustment of status contexts. Why not extend it across the entire spectrum of the employment-based immigration system? It is a convenient halfway point on which all interested parties of good will can agree without having to go through the agony of a total system overhaul.

7. If you lose at PERM does the 7th H-1B year still survive?

This is a tough one that will have to be settled in Washington DC. at the policy levels of USCIS. Here is the problem, or at least why might be a problem. If anxious employers want to risk the loss of the old priority date, they can file under PERM. USCIS would just love not to have to decide if someone should get a 7th H1B year and PERM gives it the perfect out. After all, no one is forced to file under PERM, so it is hard to argue that they are being punished for doing so. If the PERM upgrade is accepted, the original filing date is retained. However, if disaster strikes and there is no PERM approval, there will be no pending labor certification on file for at least 365 days to adjudicate; hence, the rationale for allowing a 7th year in H1B status is gone. No need to allow for more time so DOL can decide a labor certification that has been withdrawn! Now, it is true that the American Competitiveness in the 21st Century Act does not require the labor certification to still be there, and the statute does not bar giving a 7th H1B year if the PERM upgrade fails but why would you? What is there to wait for? After an unsuccessful PERM upgrade, USCIS can easily argue that the 7th H1B year request has become moot since there is no longer any underlying labor certification to sustain it.

One other minor annoyance that could come back to bite you- after PERM, will you still be able to get proof of the labor certification filing to support this 7th H1B year? After all, as leading immigration expert Naomi Schorr points out, the April 2003 memo by William Yates asks for proof either from the SWA/SESA or from the Regional DOL office, neither of which will have any records or role to play after March 28th. For this reason, unless you already have it, obtaining proof of a prior labor certification filing may be difficult to get post-PERM. Perhaps, Mr. Yates can update his guidance to make it PERM compatible. This would, of course, require the elimination of his prior memo even if the new one is not accepted! Cautious employers may elect to lodge such requests for confirmation before March 28th either with their SESA/SWA or, if the files have been shipped out, with the backlog reduction center that has jurisdiction over the case.

8. Labor Certification Revocation and AC 21 adjustment of status portability: Can't we all learn to get along?

Right now, once a Certifying Officer approves a case, they lose control over it. If they change their mind later, it is too late. There is nothing in the current labor certification regulations that allows a CO to revoke an approved labor certification. 20 CFR 656.30(d) and 656.31(d) do authorize a Consul, a Court or the INS to revoke an approved labor certification, but only after a finding of fraud or willful misrepresentation of a material fact. Compare that to PERM which allows for revocation by the Certifying Officer if the CO finds that approval was not "justified", which may or may not be a different, perhaps lesser, standard than in the Notice of Proposed Rulemaking where the CO had to conclude that the prior certification was "improvident". It is not certain if the CO can act unilaterally (preliminary comments say yes) or the regulation itself which calls for consultation with the Chief of the Division of Foreign Labor Certification. In either case, anything that would justify denial is now enough for revocation; no fraud or willful misrepresentation need be found. Truly, the times are a changin'.

There is a conflict between PERM and the USCIS policy governing adjustment of status portability under the American Competitiveness in the 21st Century Act. Under PERM, there is no time limit on revocation, while AC 21 says that, once an adjustment has been on file for 180+ days, assuming I-140 approval required by current USCIS interpretation, the old employer loses any control over the process that now belongs body and soul to the alien. Indeed, the labor certification itself survives should the alien port to the same or similar occupation with another employer. So, after 180 days, the old employer has no ability to affect the adjustment case. Indeed, USCIS has told us that even withdrawal of the approved I-140 after 180 days would not change anything. How does that square with PERM? Not very well.

Angelo Paparelli, one of America's leading immigration lawyers, points out that, under PERM, it would be the old employer, now powerless, who gets notice of an intent to revoke the labor certification! Not the alien who owns the labor certification. Not the new employer for whom the alien intends to work upon becoming a permanent resident. What interest would such an old employer, now spurned by the alien who has moved on for greener pastures, an employer who may have withdrawn the I-140, have in fighting revocation? Very little. Indeed, some employers might actually welcome revocation as punishment for the ungrateful alien. As Angelo Paparelli wisely observes, clearly DOL did not take AC 21 adjustment portability into account when the revocation approach was set in stone. It is reasonable to assume that past revoked certifications will be one of the database elements used by DOL in deciding on whether future cases by an employer should be audited or subjected to supervised recruitment. So, even an antagonistic former employer might find it in their own narrow self-interest too contest revocation even when they do not want to have anything to do with that alien ever again. Now, is that not going to be fun for immigration counsel to explain that one to an irate client?

9. Are "occupations" and "job opportunities" the same thing?

The concept of "occupation" figures prominently in the PERM regs. They speak of a "combination of occupations" as opposed to a combination of jobs. They ask whether requirements are normal for an occupation. Have US workers in an occupation been laid off in the past six months? Yet, nowhere is "occupation" defined. Is its meaning self-evident. In other instances, we are told to look to the O*NET job zones for SVP, but there is no frame of reference, such as the Occupational Outlook Handbook, to define the term "occupation" or determine what would be normal for it.

The ETA 9089 form itself moves back and forth between jobs and occupations as if they were opposite ends on a seamless continuum. Question 12 in Section H is a perfect embodiment of this schizophrenic nomenclature:" Are the job opportunity's requirements normal for the occupation?" (emphasis added) Why not ask if they are normal for the job opportunity? Moreover, you look in vain for any definition of "normal" in the definitional section of the PERM regs at 20 CFR 656.3. What is "normal"? The DOL's valid concern has been and remains that the "job opportunity" not be restrictively defined. That being so, why not ask if the requirements are normal for that job for which certification is sought, rather than for the wider occupational category? Indeed, even Information Industries, 88-INA-92 , (BALCA, February 9, 1989) recognizes that whether job requirements bear a reasonable relationship to an occupation must be defined "in the context of the employer's business" and whether such requirements are reasonably essential to perform the duties of that job. The point is that you cannot determine if requirements are normal for any occupational category unless "occupation" is defined in the context of, and with direct relation to, the specific job opportunity for which certification is sought. Question 12 on Section H of ETA 9089 simply does not do that.

10. How much alternative experience should a fella get anyhow?

The lack of definition in PERM between jobs and occupations breeds similar confusion in the treatment of alternative experience. We learn from 20 CFR 656.17(h)(4)(ii) that, if the alien does not satisfy the primary job requirements, but must qualify on the basis of alternative experience, certification will not issue unless any combination of education, training or experience is acceptable. There are several problems here:

(1) There is no way for an employer to state on the ETA 9089 that any suitable combination is acceptable for the simple reason that this question is never asked. Question 10 in Section H only asks if experience in an alternate occupation is acceptable, while Question 10B asks for the job title of the acceptable alternate occupation. The employer who wanted to indicate that any alternative is acceptable has no way to say this.
(2) The language of the regulation and the form are not the same. Question 10B only speaks of a "job" title for an acceptable alternate "occupation." This assumes that "job title" and "occupation" are one and the same. Not so. Moreover, contrary to the wording of the regulation, the form never uses the word "combination" much less "suitable combination" and makes no mention of combining "education, training or experience."
(3) By its very wording, Question 10B assumes there is only one acceptable alternative occupation whereas the regulation mandates that any alternative is OK.
(4) The regulation speaks of a "suitable" combination while the form itself inquires as to an "acceptable" alternative. Are these two concepts identical in meaning? Who is to judge whether an alternative occupation is suitable? Is it the CO or the employer? If the CO and employer disagree, what then? Could the CO change his or her mind about suitability after certification and use this as a basis for revocation on the grounds that prior approval was not, in retrospect, "justified" to use the amorphous language of 20 CFR 656.32(a)?

This is a related but equally large point. 656.17(h)(4)(ii) speaks of the alien who is "already employed" by the employer. In what capacity? Does it have to be in the same job for which certification is sought or in a different job? What if the alien was employed in a job that was not "substantially comparable" so that more than 50% of the job duties were different than in the labor certification job? Would the employer still be under an obligation to accept any suitable combination? If so, this would seem to undermine acceptance of the use of such experience provided for in 656.17(i)(3) by imposing a higher burden on how alternative experience can be structured. If this interpretation is correct, it means that Kellogg trumps Delitizer, something that the BALCA has never admitted, and contrary to what DOL has consistently contended.

These questions are not meant to suggest that the PERM regulation, or PERM itself, will not work. They are asked to point out that, in several key places, PERM is technically imprecise and thematically incoherent. Whether these problems can be solved will go far to determine PERM's fate, and ours as well.

Labor Certification by Joel Stewart - "THE PERM BOOK" will include an essay by Gary Endelman. For more info on this book, see here.

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.