Filing PERM Cases For Advanced Practitioners
Editor's Note: The following are the materials for this seminar.
"Filing PERM Cases For Advanced Practitioners"
Session 1 held on March 23, 2005
Recent Articles by Gary Endelman
A) Chintakuntla's Revenge: Can Education And Experience Co-exist Under PERM? - http://www.ilw.com/articles/2005,0407-Endelman.shtm
(B) Can't We All Just Learn To Get Along? PERM And The Threat to AC 21 Portability - http://www.ilw.com/articles/2005,0303-endelman.shtm
(C) Is There A Visa In The House? Why AC 21 May Not Help Us After PERM - http://www.ilw.com/articles/2005,0215-endelman.shtm
(D) Somethin's Gotta Give: PERM And The Pressure For Larger Immigrant Quotas - http://www.ilw.com/articles/2005,0202-endelman.shtm
(E) 10 Key Questions On PERM -
(F) The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM - http://www.ilw.com/articles/2004,1102-endelman.shtm
Thank you for your leadership in the area of PERM, and for your incisive comments during the ilw telecons. I understand that you are writing an article about re-filing and about having two applications in the system at the same time.
I have a question that you may already be covering in your article, which I believe would be of general interest.
Section 656.17(d)(4) discusses that re-filed applications will be considered identical considering "all accepted amendments up to the time the application was withdrawn." Would this include the employer's receiving a certified mail postal receipt from DOL, submitted in connection with the employer's amendments by mail? What does "accepted" mean?
Answer by Gary Endelman:
First of all, I would not withdraw a prior case, even if you wanted to take advantage of the original filing date since filing an identical case under PERM and seeking to profit in this manner IS deemed a withdrawal. So, why withdraw in advance? Second, while the term "accepted" is not defined, I do not interpret it as simply being received by the SWA or DOL but agreed to. Accepted here meaning DOL/SWA has no objection to the amendment, that it does not constitute a new case or otherwise cause loss of the original filing date. Hope this helps.My Two Bites article did not address this very good question.
Guidance of wage stated that level I should be used for trainer but not qualified worker. I received level I from SWA after 3/8/05 4 tier wage system. Is this wage can be challenged by DOL later?
Answer by Gary Endelman:
I suspect that DOL will not allow two cases at the same time but this is a fluid issue and DOL has never formally said one way or the other. I think an SWA wage finding can be relied on during the period of its validity.
Thank you for your message and for the opportunity to ask our questions. There were actually two questions we would like to ask regarding PERM:
For the in-house posting requirements: If there is in-house media where the position must be posted that is web-based, such as internet or intranet, it is unclear how long the position must remain posted. Would the length of the posting be 10 business days, as is the length of the physical posting, or should it be posted for at least 30 days as you suggested for the other forms of web-based recruiting?
In filling out the form: In Section K. Alien Work Experience, the spaces limit the alien's prior work experience listed on the form to 3 jobs. This will prove problematic in many cases where individuals have extensive relevant prior work experience. Is there any solution to this other than creating an attachment and mailing in the application? Is there a reason that the form only leaves room for 3 prior jobs?
Answer by Joel Stewart:
1. Regarding in-house media (web-based, etc.), I believe that 10 working days would be sufficient, in line with the Notice of Posting. If it is a daily electronic publication (like Immigration Daily) then one time should be sufficient. If it is in print, then it would be distributed according with company policy -- I recall the daily printouts that they provide for seminars, for example...they have a life expectancy of one day.
2. About the work experience not fitting in three jobs, there are several ways to deal with this problem. At the outset, the purpose is for the Employer to assert and attest that the alien is qualified to perform the job. Under PERM, the documentation must be held for an audit. It would be easy to have documentation of the alien's experience on hand, but your question is how to show it on Form 9089. You could, for example, consolidate several jobs into one box. For example, we have done that for years if the alien had multiple jobs with the same employer. You can put the start and finish dates, and in the job description box you can indicate which dates the alien worked in position one, position two, etc. You could also do the same, if necessary, by putting in one of the boxes "Multiple Employers", filling out the address generically, or with less specificity, for example, the name of the city where several jobs were held, state, etc....and then consolidate the information in the description box. The idea is to answer the question truthfully, within the requirements of the technology, and to have the documentation in case of an audit. As far as avoiding an audit is concerned, I don't think the consolidated information will trigger an audit. You would need to fill out the name, address, city, state, zip codes, etc., in full. Again, if there are multiple jobs, just put the first one in the top of the box, and condense the information into the description box as best you can. To give you a better idea, we have sometimes put, "Multiple Jobs" in one box where a self employed person had worked a few days, weeks or months in one place, a few in another place, and often overlapping...The basic idea was to show DOL that the alien had full-time experience in the job offer..
It is regarding question H-4B, enter the major field of study required. Our clients often state the requirement in the alternative, such as Computer Science, IT or Math, without one being the primary and the others secondary. Can we list more than one, or are we required to ask the employer to select one and list a second as an alternate field of study in 7A?
Here is a related question I'd like to ask: Employee has 3 year BS in Math from India and 12 or 13 years of IT experience, primarily as a SAP HR consultant/analyst. He has evaluation for equivalent to US BSCS for H-1B purposes. If employer requires Bachelors in CS or IT, or equivalent education and experience, how do we describe it? Do we say Bachelors in H-4, major in H-4B, "alternate combination of education and experience is acceptable" in H-8 (such as 3 years of education and 2 years of experience but that employer will accept any reasonable combination of education and experience) How then do we answer H-8A, B, and C?
In another case, what if employer requires 2 years of training or experience as carpenter/carpenter technician, how do you describe that? Training is an option, but not required. Similarly, experience is an option, not a requirement. Is it easier to skip the training and just go outright with experience?
Answer by Joel Stewart:
1. About listing alternative educational requirements, you can list them anyway you want. Examples would be "Computer Science/IT/Math" (all in one box) or you can chop them up into different boxes. My guess is that if the disciplines are very similar, you would list them in the same box like requiring a degree in "Economics/Finance", and if the jobs are somewhat different conceptually then put them in the separate boxes, "Economics/Finance" in one box and "Hotel Management" in the other box.
2. In the questioner's second question, he asks about H-1B and then refers to H-4, H4B, H-8 and H-8A, B & C. The first reference to H-1B refers to an H-1B visa, and the remaining references to H-4, H4B, H-8, H-8A, B & C refer to the boxes on form 9089. That being said!!!! let's proceed with the answer: This is a real kettle of fish. You have to analyze the questions in "H", the instructions for the questions, prior labor certification experience, and your background/knowledge of DOL decisions on these and related issues.
H-4 "other" refers to anything that is not in the preceding boxes, i.e., post high school, technical, vocational SVP kind of training/education...H-4 does not refer to High School, Associate's, Bachelor's, Master's or Doctorate.
Remember that you can qualify your client for 3rd preference skilled worker by requiring two years experience, a Bachelor's degree or two years post secondary education/training. Box H-4 gives you the chance to list the post secondary education/training.
Box H 4-B gives you a chance to put one (or more) major fields, like "Economics" or "Economics/Finance".
Item 7-A gives you another chance to put the alternate field of study.
The trick between H-4B and 7A is to separate closely related fields of study (can be put in H-4B) and more distantly related fields of study (can be put in 7-A).
Alternatively, if you feel uncomfortable combining fields of study in H-4B, you can just put the primary one in H-4B and combine the others in 7A.
Questions 8, 8-A and 8-B, and 8-C give you a chance to require a different kind of preparation, for example, a degree instead of experience, and you would treat the boxes the same was as in the previous examples....8B could have multiple titles like "Economics/Finance".
The final question from the questioner is about the carpenter/carpenter technician, and I would handle that by following the concepts in Kellogg -- you can require experience in the principal job or in the alternate job by showing that the alternative requirements meet the definition in PERM under 656.17(g)(4)(i) "alternative experience requirements must be substantially equivalent to the primary requirements" and 656.17(g)(4()(ii) "any suitable combination of education, training, or experience" as acceptable, if the alien is already employed by the employer.
It appears that there is no place on the form to write "any suitable combination of education, training or experience is acceptable..." so that the letter of this law can be met by broadening the alternate requirements to include any suitable combination...." and by answering "yes" to each question in "H" regarding alternate experience, education and training.
As I was reviewing Form 9089, I noticed that in Section I(d) on page 5 of 10, if you answer "Yes" to question I.1 or 1.2-B, you have to complete at least three (3) of the items listed in Section I(d). This question relates to the three additional forms of recruitment required under the regulations. However, it was our understanding that you did not have to choose three different types of recruitment from the types listed, that as long as the advertising was from different sources, you could choose the same form of recruitment multiple times. For instance, if you run three Internet ads on three different web sites, it was our understanding that this meets the three additional forms of recruitment requirement under the regulations. Or how about two extra print ads (in addition to the two print ad requirement) and an Internet ad to meet the three additional forms of recruitment. Looking at Section I(d) on Form 9089, it does not give you the ability to list the same type of recruitment twice (even though the same type of recruitment may be from different sources). As a result, it seems that Form 9089 reflects the DOL has interpreted the regulations to mean three completely different types of recruitment, rather than three additional forms of recruitment.
Do you agree with our interpretation of how to satisfy the three additional forms of recruitment required under the regulations? If our understanding or interpretation of the regulations is the same as yours, how would you recommend that we answer Section I(d)?
Answer by Joel Stewart:
My reading of PERM is that the three Professional recruitments should be three separate kinds and not the same kind. If the regulations are not crystal clear, the lessons we learned from pre-PERM processing, both regular and especially PERM, that employers should exhaust a variety of recruitment efforts, not just one genre. Sorry!
The question states whether the job opportunity's requirements are "normal" for the occupation. The question does not state whether the requirements exceed the ONET or Job Zone codes.
How do we define normal? Is normal requirements defined merely from Onet and the Job Zones or do we consider the past history of the occupation in the industry or employer. Until March 28, 2005, the DOL agreed that normal could be the requirement of a Masters degree and three years of experience (or a BS plus 5) for a Software Engineer.
By checking yes we may be triggering an audit in each and every case filed for Software Engineer.
Any thoughts on this subject?
Answer by Joel Stewart:
The regulations state that "normal" are the requirements in the O-Net. Unfortunately, some job titles have been downgraded to a lowr SVP in the transition from DOT to SOC. The downgrades are so wide-spread that my guess is the DOL will be more reasonable than in the past to accept business necessity documentation. The way you should approach this (assuming a real job with real requirements) is to document why the employer needs a Masters plus three or a BS plus 5 (or whatever combination you come up with), place the documentation in the file, and answer that the requirements are NOT normal. An audit is not the end of the world -- think of it as a remand for additional information. If you have the documentation, they should approve it, especially if the job is one that was recently downgraded. Meanwhile, I believe that many forces will be at work to get DOL to reconsider or reclassify the downgraded jobs. Everyone is up in arms about this. Look at www.rehab.org -- this is a non-immigration group that is furious about the mixup in the O*Net!
What advice, recommendations or insight can you provide regarding combined job duties of several occupational classifications and identifying an O*Net Code for the same under PERM?
I am finding that Employers are frequently hiring foreign nationals having degrees and experience in several occupations, not necessarily related. The employers seek out these types of persons so that they can keep their workforce lean by not having to hire two people, such as business major and manufacturing engineer; or an IT major and marketing major. Usually, one degree is obtained abroad and the other one in the States.
Answer by Joel Stewart:
This question is a bit more generalized. I would ask the questioner to consider avoiding combinations of job duties, since they are the most difficult to document and justify. The business necessity standard for combinations is higher than the other business necessities. On the issue of various diplomas, I think that is very easy...it is permitted under PERM...you can read the Kellogg decision (BALCA) or read my article the Kellogg Quandry" -- following that take another look at the PERM regs and see how they have codified Kellogg -- in a nutshell, you can have the alternate combinations of experience, education, and training you want both under pre-PERM and under PERM no problem!
Just finished with your seminar and very enlightening, if not altogether disheartening.
Question: You mentioned many jobs that were considered skilled under DOT that now are in Job Zone 2, and thus less than SVP 6.
Cook seems to be one as it is 4 to > 6. First, I presume this means max. exp that can be required is 1 year (not 2 as under DOT). If so, can you just again explain how to get around this. Executive Chef/Head cook is still a 7-8 so I am aware of that. BUT the majority of restaurant cooks are NOT executive level. Can it be they erred??? This is nuts!
Please reply as we do MANY such cases and already have many in the pipeline that will not be happy if they end up in the EW category.
Answer by Joel Stewart:
The "Cook Question" is a very serious one! I think "nuts" is right to what has happened under PERM. All of a sudden, from one day to the next, most of the cooks are downgraded from SVP 6 or 7 to a much lower SVP level. You will need to look at all the SVP descriptions for cooks and culinary persons. Take a look at caterers and foreign specialty cooks. As in the response to some of the questions above, I think that audits are not to be feared as much as everyone thinks, and if you have documentation that you need more than 6-12 months experience for your cook, you can withstand an audit on the issue. Seasoned (no pun intended) practitioners should get together a dossier on minimum requirements for cooks on a national and local level....this could including training programs, cooking institutions, requirements at different kinds of institutions and restaurants....plus the employer's own documentation...and you should be able to place many of the cooks in the skilled category. Remember that prior to PERM, the DOL was whittling away at cooks, denigrating them to unskilled worker category because they were cooking common food, like Italian menus, or challenging the type of establishment where the cook would be employed. My guess is that the changes in the O*Net were intended to address these issues.
Can we post the 10 day internal job posting with the employer, within the 30 days immediately preceding the filing of the ETA 9089?
Answer by Sam Udani:
Please see 656.10(d)(3)(iv) which requires that the notice be provided between 30 and 180 days before filing the application. Please also note that the notice must be for 10 consecutive business days, this would mean the notice must be first posted 44 days before filing the application (at least 45 days if there is a 3 day weekend, etc.)
Sam Udani, et al are the speakers for the Filing PERM Cases For Advanced Practitioners seminar.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.