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Citations for ILW.COM's Seminar
"Are We All Certifiable?" -- An Insider's Tour Through The Maddening World Of Labor Certification
Part 2 held on March 18, 2004

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From Jonathan C. Adams

Handling Salary Changes After Labor Certification In Employment-Based Immigrant Cases

Ester Greenfield

Training And Employment Guidance Letter No. 5-02, http://www.ows.doleta.gov/dmstree/tegl/tegl2k2/tegl_05-02.htm

Edward R. Litwin

  • Necessity to document ability to pay from the date of filing-Matter of Great Wall-16 I & N Dec 142 (1977)
  • If present wage is less than the prevailing wage, the employer must demonstrate it could pay the prevailing wage-Masonry Masters, Inc. v. Thornburgh-742 F.Supp 682 (DDC1990)
  • Factors differentiating 2 positions-Matter of Delitizer of Newton 88-INA 482 (BALCA, enbanc1990)

    Jonathan Adams

    Immateriality:

    Please realize that my immateriality strategy, although successful on dozens of cases in the Vermont, Texas and California Service Centers, several District Offices and at least one of the consulates in India, is not grounded in a particular Regulation or policy memo directly on point. Rather it was instigated through informal discussions with various government representatives including at CIS HQ and DOS. As I had only 45 seconds to expound on it, undoubtedly it engendered some confusion

    (1) Employer does not need to pay the offered wage until the alien has been admitted to permanent residence
    Employment and Training Administration, US Department of Labor, Technical Assistance Guide No. 656, Labor Certifications 34 (1981) [section 656.20]
    (2) Salary increases, assuming the same job duties, generally are immaterial to the continuing validity of the labor certification. The case represented a salary differential of $19,000 or approximately 40 percent of the originally offered salary
    Memorandum written by Lawrence J. Weinig, INS Deputy Assistant Commissioner for Adjudications in response to a query by Michael Friedberg. (February 1990)
    (3) The Immigration Service has authority to determine materiality of any changes post certification. The exception to being able to not being able to have the CO amend the labor certification post certification is if the CO made an error in processing the certification. In my experience this only works if the issue was raised by the employer, but not duly recognized by the CO
    December, 1993, James A. Puleo Memo on "Amendments of Labor Certifications in I-140 Petitions" and May 1992 memorandum from Donald J. Kulick on "Amending Certified Labor Certifications."
    (4) No citation for comments by Jan Peck and confirmation by Bill Lessor re impact of salary decreases to Labor Condition Applications (as long as still meets prevailing, is across the board, i.e., actual wage range has been lowered and Public Access File has been amended)

    Be mindful of:

    -Confirming that the offer of full time employment continues to exist
    -Establishing the ability to pay from filing through the adjudication of the adjustment even in AC-21 situations (see, e.g., ISD Liaison Minutes from 9/12/02 Teleconference)
    -Ensuring that the lowered salary still meets prevailing
    -Being able to evidence that at the time of filing there was no fraud or misrepresentation and that the company had the intention of paying the offered wage, but for the post-filing change in circumstances (see, 20 CFR 656.31)
    -Not simply expanding this idea to other types of cases (see, e.g., substitutions in Report of ISD Teleconference, 9/6/01)

    Notes from Pros & Cons of filing traditional labor certifications:

    In general, if a shortage of available US workers still exists for a particular position, then I would still recommend that we file with a request for reduction in recruitment (RIR). That being stated, with an unemployment rate hovering around 6%, cases filed from a given industry (notably IT) can expect to meet with a continuing high degree of scrutiny.

    Pros of filing a labor certification under the traditional process
    (1) There are less up front costs
    -Print ad costs are postponed until the SWA (state workforce agency) supervised recruitment (hopefully at a time of less fiscal restraints and a clearer picture of the job market)
    (2) We can add more requirements to a traditional case (to clarify position by which to review US worker resumes)
    (3) The cases will probably be eligible to convert (upgrade) to PERM
    (4) Results in fewer max-out situations as the filing of the case starts the 365 day clock for 106(a) of AC-21 extensions
    (5) Sometimes we have no-choice (no recruitment results, no ads, no process for tracking the consideration of US worker resumes to support RIR and the stigma to the case from recent, even unrelated, layoffs)
    -In this case, failure to be able to initiate any PR cases creates a reputation for the company and becomes a morale/recruiting issue

    Cons of traditional:
    (1) Cost
    recruitment report and 3 days of longer ads
    -offset by the standard RIR NOF re comment on layoffs and provide additional recruitment, RIR ads are becoming more specific and catered to individual cases and an extra ad may need to be placed upon a Regional directive
    (2) Uncertainty
    No recruitment results until SWA supervised recruitment -offset by Region directed NOF re layoffs in the industry and threat of needing to place an additional ad and recruitment report
    (3) Processing time
    Traditionally, RIRs take less time
    -offset by PERM conversion possibility and fact that at some SWAs the processing time gap between traditional and RIR cases is narrowing
    -offset by Backlog Reduction efforts
    -offset by "culling" efforts
    -check out
    (4) Manager involvement
    In the SWA supervised recruitment ALL resumes forwarded by the SWA must be considered and applicants contacted (phone interviews are acceptable) within 14 days of receipt. As the labor certification is detailed and specifically outlines the requirements for a particular position, the interviewer must understand the details of the position -offset by high involvement by recruiters/managers in identifying appropriate skill sets and candidates for RIRs. Also PERM may obviate this process. Traditional labor certification ads usually generate fewer and more focussed responses than do ads used to support an RIR

    RIRs in anticipation of PERM
    PERM was to be "imminently" implemented since 1999. This time, however, high likelihood of implementation prior to end of this calendar year and possibly within the next four months. Therefore:
    (1) Conduct recruitment in line with PERM proposed requirements (a good idea anyway in the current market environment). This includes two print ads 28 days apart (consider placing on a Sunday as per proposed PERM requirement), passive and active recruitment and, of course, 6 months pattern of recruitment.
    (2) Be mindful of potential PERM stringencies including, no 5 percent variance, avoidance of on-the-job experience (a good practice anyway), business necessity, etc.

    Delitizer:

    (1) Follow up to the "Delitizer" section of the conversation. Although a nonbinding case, some of the reasoning is useful. Case held foreign entity experience for the same employer was not to be considered "on-the-job" experience
    (2) Rieter Corporation, Employer on Behalf of" Rolf Wilen, Stephen Holzapfel, Joachim Schilling, and Reto Kunz Aliens. Case Nos. 2000-INA-193 2000-INA-194 2000-INA-209 2000-INA-210 CO Nos. P1998-SC-043210 P1998-SC-04313211 P1998-SC04313212 P1998-SC-04313213. September 29, 2000

    On the job experience worksheet:
    Please note proposed PERM Regulations regarding on-the-job experience See attached file:
    http://www.ilw.com/seminars/february2004_citation2b.pdf

    Bona Fide Job Opportunity:

    Analysis of whether a bona fide job opportunity exists when the subject of the alien employment application has an interest in the sponsoring entity
    In the Matter of: Modular Container Systems, Inc., Employer on Behalf of Enrico Ettore Beretta, Alien 89 INA 228, 1991 WL 223955 (1991)


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