Archive for the ‘Department of Labor’ Category

Special PERM Issues – There’s No Place Like Home

October 26th, 2012
posted by at 12:43 am

By Pam Prather

 

 

 

 

 

 

 

 

We’ve all heard the sage advice regarding real estate, that the three most important considerations in purchasing are location, location, location. Well, that’s kind of true in many employment-based permanent residency cases, too.

One of the first things you do when a client hires you to do a PERM application is to strategize the case.  And one of the first steps in strategizing is figuring out the location for which you will file the Prevailing Wage and test the job market. Many times this is quite simple, and you can immediately move on to the next steps. In other cases, however, “Where”? is not such an easy question to answer.

This is an important issue, because:

The Immigration and National Act, 8 U.S.C. § 1182(a)(5)(A), provides that “[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that…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 ..” Thus, the Department of Labor’s regulations require an employer to prove through a test of the labor market that that there are not sufficient workers in the United States who are able, willing qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. (emphasis added) (Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007).

For roving employees, tele-workers, traveling salesmen, etc., there really is no “home” for their job.  But just as they have lagged behind in responding to other changes in the contemporary workforce, the Department of Labor (DOL) has not yet fully addressed this issue when it comes to Labor Certification.  Sometimes, Immigration practitioners have had to play a “let’s see if this will work” game with the DOL Alien Employment Certification office.

For most of us, guidance on this issue began with the Employment Training Adminstration’s (ETA’s) Memorandum of May 16, 1994.  In it, the government provided instructions regarding labor certifications (pre-PERM) which stated “applications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.”

Of course, nothing is ever that simple in immigration law.  The Board of Alien Labor Certification Appeals (BALCA) has also ruled that “the mere presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location”.  If the location is thought to be too rural, or has a Prevailing Wage that is significantly lower, or the employer fails to conduct recruitment on a national scale, DOL has been know to “kick” the application out.  If the address of the work site is the same as the alien’s home address, the PERM is likely to pick that up for audit.  These scenarios are not necessarily bad, because at least they give you the opportunity to explain case details more clearly.  Naturally, though, an audit response can add significantly to the overall processing time.

Some cautious practices can help quite a bit when a job location is in question.  You can get a Prevailing Wage for possible work sites, and make sure the employer offers a salary that matches the highest one.  You can ensure that the recruitment campaign is widespread – even national. You can post Notices at as many sites as the employer will provide. These are ideas to take into consideration when strategizing your case, and analyzing risk versus benefit.

Hopefully we’ll soon have a Department of Labor that truly understands our modern employment practices.  It would be great to have job descriptions, wage reports, recruitment guidelines, etc. that better reflect today’s market.

Until then, remember – wherever you go, there you are…..

Can You Relate? Understanding the ‘Invalidating Relationship’ for PERM Cases

April 28th, 2012
posted by at 6:54 pm

By Pam Prather

In the area of Employment-Based immigration, both the PERM and the I-140 Immigrant Petition are based – among other things – upon a “bona fide job opportunity”. Many factors go into the analysis of this particular piece of the pie. One is whether the beneficiary is related to the petitioner.

Question 9 of the PERM ETA-9089 asks “Is the employer a closely held corporation, partnership of sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators and the alien?”

The point is whether the relationship influences the petitioner – in advertising for the position, reviewing resumes, and/or interviewing applicants – to the detriment of the U.S. worker. Although the relationship itself would not normally be the sole factor in the denial of a petition, it definitely has bearing. The DOL and the USCIS may determine that because of the relationship, the job was notactually available to any other candidate, and therefore not bona fide.

It is concerning that “familial” is defined quite broadly in some DOL and USCIS decisions. In Matter of Summart 374.00-INA-93, BALCA upheld a denial stating that “A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by ‘blood’ or it may ‘be financial, by marriage or through friendship’”. (emphasis added)

The term “friendship”, rather than clarifying, seems to open up another can of worms. What definition is the government using?

Mirriam Webster defines friendship as:

1. a : one attached to another by affection or esteemb : acquaintance

2. a : one that is not hostile b : one that is of the same nation, party, or group

3. one that favors or promotes something (as a charity)

4. a favored companion

For both employers and employees, then, it is extremely important to disclose any prior relationship between owner/operator/executive and the beneficiary of the employment-based immigration petition.The difference between approval and denial could theoretically depend on a chance encounter at an industry networking function, or finding each other at your children’s softball game.

A competent immigration lawyer should be consulted to ensure that the job opportunity is properly made available toU.S. workers, and the bona fide nature of the position is made clear to the federal agencies involved.

DOL Says “All Too Easy” To Companies, Immigrants, and Immigration Attorneys

February 24th, 2012
posted by at 6:25 pm

By Murali Bashyam (Star Wars Fan) and Pam Prather (Not Star Wars Fan)

In George Lucas’ Empire Strikes Back, the evil Darth Vader lays a trap for the unsuspecting Luke Skywalker.  Skywalker, unknowingly, walks right into the trap.

What happens next?

This week, the Department of Labor ‘trapped’ companies, intending immigrants and immigration attorneys alike.   In yet another setback for employment-based immigrants, the PERM system has a new glitch.

Or is it a glitch?

Immigration practitioners have filled the blogs with messages of frustration and dismay, because a new ‘government error’ is resulting in a slew of denied applications.

This one concerns the contents of the advertisements placed for testing the market, specifically the ads’ description of primary and alternate requirements.  Although NOT legally required, denial letters state that the so-called “Kellogg language” must be specifically included.

This is clearly incorrect.

As AILA (American Immigration Lawyers’ Association) shared:

“AILA has continued to follow up with DOL [Department of Labor] on this issue. ….the response to date is that this is being investigated, and they hope to have an update ‘soon.’ …… I think that someone is confusing the supervised recruitment standards with the PERM recruitment standards.

……. DOL hasn’t revoked their FAQ which says that Kellogg language does not need to be in the recruitment, so the decisions appear to fly in the face of their own policy guidance and regulations”.

One has to question the DOL’s motive on this policy change, a change they are apparently implementing now WITHOUT PRIOR NOTICE to immigration community.

When discussing this with a friend, he jokingly said that it all sounds a little passive-aggressive!

In the Star Wars movie, Darth Vader says “All Too Easy” when trapping young Skywalker.  Unfortunately for Vader, Skywalker escapes and a great fight with him begins.

If the DOL thinks it’s going to be ‘All Too Easy’ to shut down our legal immigration system with decisions that clearly contradict precedent, they are wrong.  The immigration community will fight to right these wrongs, much like Luke Skywalker did against the evil Darth Vader.