Alan Lee, Attorney at Law - PERM Labor Certification Application Points Of Interest

News Update - May 17, 2010

By Alan Lee, Esq.^†^‡

PERM Labor Certification Application Points Of Interest

The Department of Labor's (DOL's) stakeholders telephone conference of March 25, 2010, touched on many PERM labor certification points of which the following were among the more interesting:

-- Wage range cases in which the bottom of the range meets the prevailing wage but not the alien's salary and were denied are being reopened and approved. A wage range occurs when the employer does not wish to identify the exact wage being offered for the position and uses a range, eg $50,000-60,000. DOL's position was traditionally that the bottom of the range had to correspond with the prevailing wage for the position. (The prevailing wage is the weighted average which is paid for a position in the local area). However, it appeared to adopt a new position last year in which it insisted that the bottom of the range had to correspond with the alien's salary if the alien was working with the organization and his or her salary was higher than the prevailing wage. The counter position was that if an alien had been working for the employer for years and had been getting raises over time, an offered wage that began with the alien's pay would not reflect the true wage that an employer would pay for an entry level candidate with the minimum requirements that it would have to post for the job.

-- The Department of Labor now has separate queues for requests for reconsideration and requests for review. It now promises to forward requests for review directly to the Board of Alien Labor Certification Appeals (BALCA). Previously DOL combined the two and regarded every request for review as a request for reconsideration, which position drove practitioners to frustration as their cases would languish in the national processing center (NPC) of DOL instead of being forwarded to BALCA. Much time would then be consumed by the cases remaining in the NPC and, if not favorably resolved, they would then have to wind their way afterwards through the queue at BALCA.

-- DOL is planning to come forward with a user fee for fiscal year 2011, but has not given details. At present, the DOL does not collect an application fee for labor certification applications. FY- 2011 runs from 10/1/10-9/30/11.

-- DOL now agrees that where it has denied a labor certification application because the prevailing wage determination by the state workforce agency (SWA) was too long or too short in time, the mistakes can be treated as technical errors and the decisions reconsidered. Under the regulations, the period of validity of the prevailing wage determination (the wage which must be used as the minimum offered wage in the labor certification application) cannot be less than 90 days or more than one year. Practitioners must now obtain a prevailing wage determination with the U.S. Labor Department at the on-line iCERT Portal at http://icert.doleta.gov, but prior to 2010 such was done with the state workforce agencies of each state. The SWA's sometimes made mistakes and sent back prevailing wage determinations valid for less than 90 days or for more than one year. These mistakes were usually not caught until the time of PERM denial as everyone assumed that the SWA's knew what they were doing. DOL is now acknowledging that the errors were very small and the labor certification applications should still be granted.

-- If DOL has denied a labor certification application on grounds that the advertisements for U.S. workers did not appear in an acceptable newspaper, practitioners can file for reconsideration and provide evidence that the newspaper should be acceptable. DOL declined to provide a list of acceptable newspapers citing the fact that it did not want to promote favoritism among papers, but stated that employers should look at the ads in the newspapers to see whether they were the same or similar to the job being offered in the labor certification position.

† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.