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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

PERM Pointers, Pitfalls And Puzzles

by Edward Litwin, et al.

Editor's Note: The following are the materials for this seminar.

Citations for ILW.COM's Seminar
"PERM Pointers, Pitfalls And Puzzles"

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From Catherine Haight

3/20/00 INS Memo
To: All Svc Center Directors

From: Michael D. Cronin, Acting Associate Commissioner, Office of Programs and William R. Yates, Deputy Executive Associate Commissioner, Office of Field Operations.

Subject: Educational and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants.

From Linda Rose

Matter of Kellogg, 94 INA 465 (BALCA 1998)

Information Industries, 88 INA 82 (BALCA 1989)

From Edward Litwin

656.10(f)-The requirements that all supporting documentation must be retained for 5 years.

AILA/DOL Liaison Report, March 23, 2006 - Statement that "magic language" should be placed in H.14.

Matter of Arco Oil & Gas Company - 89-INA-295(May 22, 1991) - This takes hold that a statement by an employer may be sufficient documentation for proving business necessity as long as it is 1.) Written under oath, 2.) Reasonable and specific, and 3.) Indicates its sources and basis.

656.20(b)(i)-Provides that the Certifying Officer may request supplemental information or documentation. (There is apparently no need for this to be done through an audit).

656.20(d)(2)-Provide that the Certifying Officer may request employer to conduct supervised recruitment. (This appears to be allowed even without an audit).

Minutes of Stakeholders Teleconference - 5-15-06 - Provides that contact can be made with the Department of Labor if more than 90 days since filing has passed and there is no response from the Department of Labor. In addition, if 120 days has passed since the response to an audit, the Department of Labor can be contacted. Members of AILA may also contact AILA for assistance in these matters by emailing Permmail@aila.org.

Matter of Health America - 2006-PER-1 (July 18, 2006) - (This case holds that "documentation submitted" in support of a labor certification application constructively includes the materials held by an employer under the record keeping provisions of PERM.")

Question:

When providing the job description for PW purposes, we try to send a summary that closely mirrors the job duties in O*NET; cutting out some requirements that may be viewed as special skills. Are we to stick with the same exact job description when advertizing? I know that ads can be sufficient simply if they apprise potential applicants of the job opportunity and so, job title, location and contact may be enough. But is it important to make sure that what we state to the local SWA matches with what we put in the ads, and then the ETA 9089?

How about the interviews? Can an employer reject a US worker who does not have a skill that was not listed in the advertisement?

Answer by Catherine Haight:

The prevailing wage request must include all requirements that are on the 9089. (I.e., you can have less requirements on the 9089 than the PWR but not more.) For advertising you only need to apprise an applicant of the job opportunity so you don't need all the duties and requirements; just enough so an applicant has an idea of what the job it. At minimum, ads MUST include (1) company name (2) job title (3)†location of job and (4) how to respond with a resume.

An employer can reject a US worker who does not have a skill that was NOT listed in the advertisement, since each and every req'd skills does not need to be in ad.

Question:

When posting the 30 day ad with our SWA, there is a question that asks the maximum number of applicants one wishes to consider; it states that 999 is the maximum. What is a reasonable number to consider? Can the employer put 25 or do they have to put 999 to ensure that all possible US candidates are given a chance to apply?

Answer by Catherine Haight:

Employer must ensure that all possible US candidates are given a chance to apply so you should put 999.

Question:

This question may be addressed in the next session, but I'm often confused about alternative requirements. Let's say the position requires a bachelor degree plus 2 years experience, or a Master degree; and my person qualifies for the job only because he has the Masters degree. How should I answer Question J- 18 as to whether he has experience required in H-6? I must check "YES" to H-8 regarding alternative combination of education and experience, and I must state that any suitable combination of aducation, experience or training is acceptable. What is the implication of this statement on interviewing US workers? I am not expected to state this in the advertisement, right? Just on form ETA 9089.

Answer by Ed Litwin:

we will be dealing with properly filling out Form 9089. However, in the meantime, if your client has a Master's degree, no experience is necessary. Therefore, you would answer H-6 "no." However, as an alternative, you would answer H-8 "yes", H-8-A "Bachelor's" and H-8C "2."

For J-18, the answer would be "N/A" and the answer to #19 would be "no." The answer to the J questions is so since no experience is required.

I do not see that the "magic language" is necessary since the alien meets the requirements based on the primary and not the alternative requirements.

I do not see that you need to state the magic language in the ad if it is not required on the form.

Question:

When filing an I-140 with an approved PERM Labor cert. Which one of the following will be acceptable?

  1. U.S. Credentials Evaluation that states, Equivalent to a U.S. Bach degree (containing some college credits with additional work experience, so it's a combination of both to come up with the equivalency)?
  2. OR?,
  3. 2. U.S. Credentials Evaluation with "stand alone", credits from various colleges or universities, Equivalent to a U.S. Bach degree? (No work exp.in this evaluation).
  4. 3. Will INS accept both, if not which one is acceptable?

Answer by Catherine Haight:

It depends on what is required on the 9089. If a Bachelorís degree is required, then you need the stand alone equiv without work exp UNLESS the 9089 stated that a Bachelorís OR EQUIVALENT is required and the equivalent is defined in a manner that includes work experience.

Answer by Elizabeth Reichard:

I agreee with Catherine on this one. It depends what is listed on the 9089. It is always best to have a stand alone evaluation though, so as to avoid confusion. Please note that if you state "Equivalent," you shoud define it. If experience enables the person to have a BA equivalent, that needs to be explicitly stated on the application.

Question:

Employer wants to sponsor Alien for PERM L/C. However, he uses an outside payroll company to pay the alien who is on H-1B. in most instances. Employer's State Tax Unemployment # is not in status at this time because the outside payroll company uses their own Unemployment Tax Number. So, Employer's Number has been de-activated (not active at this time!) . We all know that to place a job listing on SWA, we need an active/current State Tax Unemployment #. for the sponsoring company. Most companies had such a number. However, once they chose to use the services of an outside payroll company, the sponsoring employer's number became inactive.

What is the protocol to obtain a current/active Employer State Unemployment Number to enable us practitioner's to advise the sponsoring employer to reactivate the State Tax Unemployment Number?

Answer by Catherine Haight:

I do not know how to get a State Tax number if you donít have any payroll.

Answer by Elizabeth Reichard:

I had this problem once before in a state where I do not typically practice. I actually called the SWA and they gave me the appropriate contact number to call and apply for the the State Unemployment Number. You might want to try that. It might work. The SWA Representative I talked was aware that this is sometimes a problem.

Question:

When exactly is the "magic language" (Kellogg language) required? Although this question was on the agenda, it was not thoroughly discussed, perhaps due to lack of time. We have received very inconsistent PERM determinations on this issue. Where the beneficiary is employed with the petitioning company and qualifies for the position based on the alternative experience requirements, we have almost all of these such cases approved until about July 2006; since then, we have had 3 denials for lack of "magic language" where the applications were completed in exactly the same manner. (On the same day that we received a denial, we also received an approval on another case that was virtually identical). We have fortunately been able to re-file with various strategies and obtained subsequent approvals, but the DOL's logic on this issue is not consistent or clear.

Answer by Edward Litwin:

Yes, we did run out of time and will be inviting Linda Rose back to our next session on November 2nd to discuss the "magic language."

Your question adds confirmation to something I mentioned in the last session, that is, that the Department of Labor may change their computer algorithms or other rule as they go along. Just because you obtained approvals in the past, does not mean that you will obtain them presently. However, this may be the same for denials, you may have received a denial in the past for which you will not receive a denial presently.

I think it is very clear that when the beneficiary of a labor certification is working for the employer and qualifies based on alternative requirements, then the Kellogg language must be used. Unfortunately, it is not always clear as to whether the requirements are "alternative" or "primary."

We have heard of some attorneys who, not wanting to take the risk, uses the Kellogg language on every labor certification. I, personally, think this is caving in to a policy over principle which is not any too clear. To be on the safe side, however, unless you are sure that the Form 9089 has been drafted very clearly so that the alien meets the primary requirements, you may want to include the "magic language" in Item #14, at least, until we have received additional clarification from the Department of Labor.


About The Author

Edward Litwin, et al. are the speakers for the PERM Pointers, Pitfalls And Puzzles.


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


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