Alan Lee's Talk At Rutgers University On January 27, 2008 - PERM
labor certifications (Part 4 of 6). Published in Sing Tao Weekly
on 3/9/08
By Alan Lee, Esq.†‡
(This is the fourth of six parts of the talk given by Alan Lee,
Esq, before the Rutgers University Chinese Students and Scholars
Association on January 27, 2008. In this part, the article picks
up with "PERM", which is item 4 on the outline which was
handed out to audience members before the talk and is available
on our website at www.AlanLeeLaw.com.
Here Mr. Lee discusses PERM labor certifications and their predecessors,
the recent rule that employers must pay for labor certification
applications, the common pitfalls of applications, and technical
aspects of their filing. The talk has been edited to improve readability.
The next installment will discuss the categories of outstanding
professor or researcher and national interest waivers.)
Now we're going to change our focus to employment based cases,
specifically labor certifications under PERM, outstanding researcher
or teacher, and national interest. These are ones that U.S. students
and scholars are probably most interested in pursuing.
Labor certifications under PERM -- In the very distant past, we
had TR (or traditional labor certifications). What is traditional?
That meant no prior recruitment. We used to send in just the ETA
750 forms to the State Labor Department, wait for them to process
the forms, and await instructions for the job order, ad, and posting
and anything else. That type of case was very labor-intensive to
the Department of Labor, and so the TR cases used to take approximately
four-five years. Then the Labor Department sometime in the 1990's
came up with RIR (or reduction in recruitment labor certification)
applications. In RIR, all the work was done prior to submission,
and the Department of Labor would then give a waiver of the need
for any further recruitment efforts in deserving cases. Lawyers
and employers had to do the ads, the posting, other recruitment
if the case warranted it, the compliance statement, and send the
paperwork to the State Department of Labor with a request for waiver
of further recruitment efforts. That was good for a period of time
until the backlog grew over the years. This was exacerbated by a
large spike of cases occasioned by the promulgation of a new law,
section 245(i) of the Immigration and and Nationality Act, which
allowed most illegal aliens the privilege of adjusting status in
the United States without having to return to their home countries
if they could prove that they had filed a labor certification application
or immigrant visa petition by April 30, 2001, and were physically
present in the States on December 21, 2000. When the backlog grew
to over 300,000 cases, however, the Department of Labor was left
wondering what else it could do. So they came out with PERM in 2005
which they had been promising since 2002. PERM is an acronym for
Program Electronic Review Management System in which labor certifications
are now mostly adjudicated electronically. PERM has been the only
method of filing labor certification cases since March 28, 2005.
It is more complex than TR or RIR. But it has the same goal, and
that is to make sure that there are no able, willing, qualified
or available U.S. workers for the job. PERM allows you to file two
ways -- the first by mailing in and the second by on-line filing.
There are two processing centers, one in Chicago and the other in
Atlanta. Everything on the eastern seaboard is sent to Atlanta,
by the way. What are the differences between on-line filing and
mail-in filing? Mail-in filing is usually used by people who have
not set up an account with the Department of Labor. The Labor Department
strongly favors on-line filing. That is because mail-in filings
require much more manpower. The Department of Labor is not supposed
to penalize those who use mail-in filing, but sometimes it appears
that if you send an application to them by mail, and because it
makes them work harder, they lose your stuff, they retype your papers
with typos and blame you for them, or just delay your case. So you
obviously want to do on-line filing if you possibly can. Actually,
I meant your employer should be doing on-line filing, not you. The
Labor Department in its January 9, 2008, report stated that PERM
on-line filings in a clear case are taking between 45-60 days. Looking
at the past, it is tremendously encouraging to say that we can get
a labor certification within that time frame. TR and RIR used to
take about four or five years. Of course, an audit on your case
will take more time. And if they deny your case and you ask for
appeal or reconsideration, you can think in terms of at least one
year.
Who pays for a labor certification? The Labor Department came up
with the new rule effective July 16th of this past year that only
the employer can pay the labor certification part of a permanent
residence case. That's enforceable by penalties and they are such
that no one wants the applicant to pay that part anymore. Of course,
that puts more pressure on employers because previously the thinking
was that H-1Bs might be to our (employers') benefit, but the green
card is only for the workers' benefit. Why should we (employers)
have to pay for it? The Labor Department does not charge a filing
fee at this time for labor certification applications although it
is thinking of doing so in the future. Even so, attorneys fees and
ads cost quite a bit of money, but now the Department of Labor is
saying that the applicant cannot pay for any of this. Once the labor
certification is received, however, the worker can pay for the next
parts of the case which are usually the I-140 and I-485. But in
terms of the labor certification itself, only the employer can pay.
This may unfortunately have a drag effect upon employers thinking
about sponsoring their workers for the green card.
Labor certification applications are usually broken up into those
dealing with professionals and non-professionals. When we do advance
recruitment for PERM cases, we're doing three or maybe four steps
for non-professionals. We're doing the job order, job posting, ads,
and posting the job in any in-house media that the organization
might have. Professionals are a different story. With them, the
Labor Department makes the employers go through another three steps
of recruitment. What are the choices for the three steps? Employers
can satisfy the three steps from a list of ten. 1 Internet postings
-- they could do Monster.com, Job.com, The New York Times.com; 2
they can do their own Internet site; 3 Bonus programs or other things
like that in the company; 4 Executive search or headhunters firms;
5 Job fairs, 6 Radio or TV ads, 7 Advertising in local or ethnic
newspaper appropriate to the job opportunity, 8 Trade or professional
organizations; 9 On campus recruitment; and 10 A notice of job availability
at the campus placement office. They just have to pick three out
of the ten. But as you can see, filing for a professional under
PERM is more complicated than for a nonprofessional.
What are the mechanics of filing? All recruitment must be done
first, and all of it must be completed within 180 days of the date
of filing the labor certification application. Also, except for
one step out of the 3 additional steps for professionals, 30 days
must have passed from the completion of the other steps before filing.
For example, you cannot have two steps, Internet postings and campus
recruitment, be done only three weeks prior to filing. But if you
only have one, say the ethnic newspaper ad, done two weeks before
the filing, that would be OK.
What are the common pitfalls of labor certification applications?
There are actually many. Typos - the problem that we see here with
the PERM process is that it is tremendously sensitive. It reminds
me of that kid game, "Operation", I think it's called,
where there's a patient on the table and the kids are supposed to
touch a certain part, and if they get right, they're rewarded and
if not, there's a big "Buzz" and loss of points or something.
Well, that's the thing with labor certifications these days. With
the ETA 9089 form, it's become a sort of "Operation" game.
If you put down the wrong thing, "Buzz", your case is
denied. The form itself is very sensitive. The Department of Labor
is trying to revamp the form, and earlier promised to have the new
form out by March 2008. The current form itself expires in March.
However, the timeline for replacing the form has been extended until
the summer. In the meantime, we're stuck with this form. In several
instances of which we've heard, one question on the form asked if
the employer was offering the position to the alien, and when the
employer answered "No", that application was denied. In
a second instance, the employer put down the wrong date for the
second ad on the form and the case was denied even though the ad
had actually run on the correct date and the employer explained
this to the Department of Labor. The computer just looked at the
form, determined that the date of the second ad was not a Sunday
which is mandatory and denied the case outright without more. And
then there was the instance of the lawyer whose address was not
on the form although it was on all of the other papers including
the lawyer's G-28 authorization of representation and that case
was denied. Hopefully, the Department of Labor will get better at
this, but in the meantime it's too highly sensitive. What of the
other pitfalls? Qualifications being too high is one -- for example,
the employer requires a Ph.D. for the job whereas the Department
of Labor thinks it is only worth a bachelor's degree. Or else a
language requirement that cannot be justified -- why did the employer
put it in? Because the alien spoke the language of course. Or else
combination job duties -- trying to discourage U.S. workers from
applying for the job by making it so that the person has to do three
jobs. Or ads being too general -- the Department of Labor does not
think that you have to put too much specificity in the ads themselves,
however, they do not want the ads to be so general that no one knows
what the jobs are about. The employer's name must also be in the
ad and the location of the business. Leaving out the employer's
name makes it a deniable case. Same with not putting down the location
of the work. Or non job-related reasons for rejecting an applicant
-- for example, an employer having eight people apply for the job
and rejecting them all because he likes the alien better. That's
not a job related reason.
What's the effect of the economy? It's seems that if you have good
times in the United States, people are not looking so hard at the
labor certifications. They're willing to let things slide sometimes.
But if we're really looking at a recession in which the economy
tanks, you can expect special scrutiny on labor certification applications
in the future.
When can you file for a labor certification? Actually you can do
it at any time that your employer agrees to do it. Does it matter
whether you file while you're on OPT? Probably only if you're going
to travel overseas to pick up a visa - but other than that, if you
file it during a period of OPT, that's fine. If you file it during
the time that you're on an H-1B, that's fine. If you're on an H-1B,
you want to file it at least before your fifth year ends. Otherwise
if your labor certification and I-140 preference petition are not
approved by the end of your sixth year, you're not going to get
another extension on your H-1B by Immigration. When you're thinking
about filing for a labor certification, you're talking about dealing
with the company. Some companies have a policy not to sponsor anybody
for the green card. Other companies will make you wait six months.
That's easy. Other companies have a policy of at least one year.
That might be becoming the norm. So I guess that part is between
you and the company. Then again, coming back to that H-1B situation,
an employer might not want to start up your labor certification
case unless you have the H-1B approved. Because, what happens if
you don't get your H-1B, and the employer has already started the
recruitment phases of a green card? What could happen at that point?
It may turn out that you will not have the authority to work for
the company until your priority date becomes available, which could
be years. That would be a problem.
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