Alan Lee's Prepared Remarks As Panelist In The Immigration Law
Weekly PERM Seminar On January 21, 2009
By Alan Lee, Esq.†‡
Mr. Lee covered four topics in the PERM Seminar for the Immigration
Law Weekly on January 21, 2009, which consisted of 1.) identifying
the statutory background for labor certifications and the agencies
involved; 2.) who can be considered the lawyer's client and payment
of fees associated with labor certifications; 3.) identifying the
filing options for the PERM application; and 4.) what the employer's
obligation is to retain documentation. The topics were actually
discussed in a rapid question and answer format, but the prepared
remarks may be of interest to the readers.
1 Statutory background and agencies involved
Labor certifications are required for immigration purposes to insure
that immigrant workers whose services are desired by U.S. employers
are not taking away jobs unfairly from U.S. workers. The requirement
is established in the exclusion grounds of the Immigration and Nationality
Act, Section 212(a)(5):
(5) Labor certification and qualifications for certain immigrants.—
(A) Labor certification.—
(i) In general. – Any alien who seeks to enter the United
States for the purpose of performing skilled or unskilled labor
is inadmissible, unless the Secretary of Labor has determined
and certified to the Secretary of State and the Attorney General
that –
(I) there are not sufficient workers who are able, willing,
qualified (or equally qualified in the case of an alien described
in clause (ii)) and available at the time of application for
a visa and admission to the United States and at the place where
the alien is to perform such skilled or unskilled labor, and
(II) the employment of such alien will not adversely affect
the wages and working conditions of workers in the United States
similarly employed.
The labor certification program is run by the Department of Labor's
Employment and Training Administration (ETA) with assistance from
state work force agencies (SWAs), its office of the Inspector General,
and the Board of Alien Labor Certification Appeals (BALCA).
The regulations on labor certifications are found at 20 CFR section
656. They describe the basic labor certification process, special
recruitment and documentation procedures for college and university
teachers, audit procedures, and supervised recruitment, labor certification
determinations, BALCA review procedures, validity and invalidation
of labor certifications, labor certification applications involving
fraud or willful misrepresentation, and revocation of approved labor
certifications.
The ETA now runs the program through its office in Atlanta, which
is located at:
U.S. Department of Labor
Employment & Training Administration
Atlanta Processing Center
Harris Tower
233 Peachtree Street, Suite 410
Atlanta, GA 30303
The SWAs have more limited roles now in the PERM (Program Electronic
Review Management) program than in its forerunners, Traditional
Recruitment (TR) and Reduction in Recruitment (RIR). In those, the
State Labor Departments or State Employment Security Agencies (SESAs)
split the workload at least equally if not more so with the U.S.
Department of Labor by even initially reviewing the labor certification
application. Under PERM, the SWAs are relegated to determining prevailing
wage and running the job orders. The basic rules there are that
recruitment must begin during the validity period of the prevailing
wage determination (between 90 days to one year ) and that the PERM
application cannot be submitted until at least 60 days after the
job order has begun. That is because the job order must run 30 days
and a PERM application cannot be submitted until 30 days after the
job order has closed.
BALCA is the administrative appeals body of the DOL for labor certifications
denials or disputes over prevailing wage. To obtain review of a
labor certification denial, the request for BALCA review must be
sent to the certifying officer who denied the application within
30 days of the determination, include the final determination, identify
the particular labor certification determination for which review
is sought, and set forth the particular grounds for the request.
Materials for review can only contain legal argument and such evidence
that was within the record upon which the labor certification denial
was based.
The Labor Department's Office of the Inspector General becomes
involved where there is possible fraud or willful misrepresentation
involving a labor certification. The Inspector General is the investigations
arm of the DOL.
The U.S.C.I.S. becomes involved in labor certification governance
indirectly in the course of its adjudication of I-140 petitions
when it questions whether the underlying labor certifications were
based upon fraud or misrepresentation, eg - the Kooritzky case involving
an attorney obtaining hundreds of labor certifications for aliens
when the employers had no knowledge that their businesses were even
sponsoring the aliens. In addition, U.S.C.I.S. checks the posting
to ensure that is in compliance with the regulations in Schedule
A cases where the applications are sent directly to it instead of
DOL.
2 Who is the client and payment of fees
Who is the client? Is it the employer or the alien? The difficulty
in determining who is the client comes about a lot in immigration
cases because the parties are usually only represented by one lawyer.
In this case, there is dual representation. To whom does the lawyer
owe allegiance? The big problem here of course is when the two sides
in an employment based case come in irreconcilable conflict and
their aims are no longer the same. Then you may find yourself having
to withdraw from the case or attempting other means to limit your
representation of one of the parties. There appears to be a difference
of opinions as to whether it is possible to do anything other than
withdraw. A few situations that may arise in labor certification
cases are if the company wants you to slow down the processing of
the case or the alien says that he/she wants you to port his/her
case to another company. The company could also tell you that it
is planning to terminate the alien and ask you not to inform him
or her because the company wishes that person to complete an important
project before termination. What do you do? Do you immediately withdraw?
Do you try to limit your representation at that time? Or would you
have tried to plan for this in advance and had one of the parties
sign an advance conflict waiver? ABA model rule 1.7 says that a
lawyer shall not represent a client if the representation involves
a concurrent conflict of interest - if the representation of one
client will be directly adverse to another client or there is a
significant risk that the representation of one or more clients
will be materially limited by the lawyer's responsibilities to another.
Exceptions are that the lawyer can continue representing if he/she
reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client, the representation
is not prohibited by law, the representation does not involve a
claim by one client against another client, and each affected client
gives informed consent confirmed in writing. Good articles expressing
the different opinions and applicable disciplinary rules and ethical
opinions on the subject have been written by Cyrus Mehta in "Finding
the golden mean and dual representation -updated," 06-8 Immigration
Briefings (August 2006) and Bruce Hake, "Dual representation
in immigration practice: the simple solution is the wrong solution",
5 Georgetown (Georgia?) Immigration Law Journal 581-639 (fall 1991)
and "Advance conflict waivers are unethical in immigration
practice-debunking Mehta's golden mean", the Immigration Daily
October 2007.
The question of who is the client dovetails into the subject of
fee payments in labor certification applications.
Under DOL rules effective July 16, 2007, the employer is liable
for all costs associated with the labor certification application
including legal fees and other expenses such as the advertising
costs. The regulation specifically says that the employer pays for
the costs incurred for the preparation and filing of the application
and obtaining permanent labor certification. However, the employer
is not liable for legal fees of an attorney who is only representing
the alien's interest. DOL was specific in its regulation that prohibited
payments include receipt of kickbacks as part in the alien beneficiary's
pay, whether through a payroll deduction or otherwise; reducing
the alien's pay for purposes of reimbursement or prepayment; goods
and services or other wage or permanent concessions; kickbacks,
bribes or tributes; or receipt of payment from aliens, attorneys,
or agents for allowing a permanent labor certification application
to be filed on behalf of the employer.
The question is whether payment of fees from only one party allows
you to claim that you have more allegiance to the fee payer than
the other party. An argument could be made that where there is strict
prohibition against accepting payment from the other party that
although you cannot disavow the other party, perhaps limiting the
terms of representation or setting up an advance conflict waiver
would be more understood by the courts. Mr. Mehta himself does not
appear to believe that the employer's paying the attorney's fees
eliminates the attorney's ability to also represent the alien, and
says that the sponsored beneficiary will need to be apprised of
the various issues and pitfalls of the labor certification.
If there is any one thing to take away from this, it is that this
is an area which is fraught with danger. Above all, you should recognize
that conflict here is a danger zone and that you are going to have
to step carefully to avoid the landmines.
3 Filing options for form ETA9089
Under PERM, employers have the option of mailing in the 9089 application
or submitting an on-line application. The advantages of on-line
filing appear to be faster determination, on-line case status tracking
ability and less chance of initial rejection for errors in filling
out the form. On-line filing, however, does require extra work to
be done by the employer to register on-line and to maintain the
account. For employers wishing to file on-line, they will have to
spend the time to register with the DOL. Employers wishing to file
on-line may register at http://www.plc.doleta.gov and receive a
pin number and temporary password. They can then log in and change
the password to one of their own choosing. Employers can also establish
sub-accounts for attorneys to assist in labor certification filings.
The registration process is explained at the aforementioned website.
Electronic filings go to www.plc.doleta.gov; and the mail in applications
goes to:
U.S. Department of Labor
Employment & Training Administration
Atlanta Processing Center
Harris Tower
233 Peachtree Street, Suite 410
Atlanta, GA 30303
We choose to do electronic filing whenever possible because of
the carrot and stick approach of DOL towards the mail-in variety.
The reasons why an employer will not electronic file are varied,
the most common being lack of know-how to set up the electronic
links with DOL. As the attorney, we of course attempt to assist
the employer in setting up its interface. DOL heavily encourages
electronic filing because of the savings in manpower. Mailed in
applications are labor intensive and discouraged. DOL’s care
in handling mailed-in applications is suspect and we have had one
or two situations in which the case was denied and later reversed
because DOL data entry personnel failed to retype the information
on our mailed in application accurately. As you probably know, DOL
has a non-modification rule for the 9089 and denies a number of
PERM applications for inadvertent typographical errors. It was reversed
in the HealthAmerica case, No. 2006-PER-1 (7/18/06), when it denied
an application based upon the employer's typographical error in
misstating the dates of newspaper ads when the tear sheets proved
the actual dates. BALCA held that although an agency may improve
a rigid regulatory scheme to promote administrative efficiency,
under the particular circumstances of the case, the certifying officer's
denial of reconsideration was an abuse of discretion.
Following HealthAmerica, DOL in the regs of May 17, 2007 effective
July 16, 2007, amended the regulations on evidence that could be
submitted with requests for reconsideration so that evidence could
also consist of documentation that the Labor Department actually
received from the employer in response to a request from the certifying
officer to the employer, or documentation that the employer did
not have an opportunity to present to the certifying officer, but
that existed at the time the application was filed, and maintained
by the employer to support the application for labor certification
to meet the documentation requirements of Section 656.10(f). The
revised section on Requests for Reconsideration also provides, however,
that DOL will not grant motions to reconsider where the deficiency
that caused the denial was the result of the applicant's disregard
of a system prompt or other direct instruction. In the comments
to the regulation, DOL extolled electronic filing, saying that it
allowed the user to proofread, revise, and save the application
prior to submission, and that as a result of Health America, it
had dramatically increased the nature and number of system prompts
and warnings in an effort to provide employers and others with additional
opportunities for correction prior to submission of the application.
DOL also noted that it added system capabilities in the form of
pop-up edit alerts to notify each applicant when a response to a
question is technically in conflict with either the PERM regulation
or certain of the formal instructions for completion of the form;
and that the applicant is allowed to continue, but with full warning
of possible deniability; that the system permits submission of the
application, but the applicant assumes the risk that the application
will be denied based on the failure to fully comply with technical
requirements and alerts of the program.
All that being said, unless the employer is computer illiterate
or has great difficulty registering with DOL, we recommend electronic
filing.
4 Document Retention requirements
Under 656.10(f), the employer must keep a copy of all supporting
documentation of the labor certification application for five years
after the date of filing. Such consists of a copy of the 9089, prevailing
wage determination, job order proof, two print ads, required internal
posting, in-house media posting if applicable, resumes or applications
of job candidates, compliance statement, and record of contact of
the job candidates. If a professional position, proof of the other
three recruitment steps which can come from a list of 10 which are:
1. INTERNET POSTINGS (e.g. – monster.com, job.com, nytimes.com);
2. OWN INTERNET SITE;
3. POLICIES OR PROCEDURES FOR ENCOURAGING EMPLOYEES OF THE ORGANIZATION
TO RECRUIT OR REFER THEIR FRIENDS OR OUTSIDE COLLEAGUES FOR EMPLOYMENT
WITH THE COMPANY, SUCH AS REFERRAL BONUS INCENTIVES. INCLUDE COPIES
OF RELEVANT POLICIES AS WELL AS INTERNAL PUBLICITY OF ACTUAL RELEVANT
JOB OPENINGS BY POSTING, NEWSLETTER, EMAIL, INTRANET, ETC.;
4. USE OF EXECUTIVE SEARCH OR HEADHUNTER FIRMS;
5. JOB FAIRS;
6. RADIO AND TV ADS;
7. LOCAL AND ETHNIC NEWSPAPERS TO THE EXTENT THAT THEY ARE APPROPRIATE
TO THE JOB OPPORTUNITY;
8. TRADE OR PROFESSIONAL ORGANIZATIONS;
9. ON-CAMPUS RECRUITMENT;
10. NOTICE OF JOB AVAILABILITY AT CAMPUS PLACEMENT OFFICE.
In light of the rule on reconsideration evidence, and the short
time to respond to audits, we believe that the best policy is to
have the package of documentary evidence completed prior to submission
of the PERM application. The policy is of course subject to change
in my opinion dependent upon the period of time that DOL takes to
adjudicate labor certification applications, the wish to submit
an application as soon as possible, and if there are other circumstances
such as the alien facing a deadline such as the 365 days needed
for submission prior to the sixth year of H-1B status expiring.
I do note one other reason for putting the package together as soon
as possible, and that is that you get a better picture of the case
when you have everything together in order and can go through it
before hitting the send button. There are opportunities for a correction
in that case rather than finding that you have a critical error
after submission and having to withdraw the application and file
again or having the error pointed out to you only at the time of
the audit, when it is much too late to use the prior recruitment
efforts because of the long period of time that DOL is now taking
to reach the PERM cases.
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