|
|
 |
Immigration News Flash
|
December 28, 2004
Summary of New Labor Certification Procedures
Below is a short summary of the new PERM regulation compiled by GT. As many of our readers know, through this regulation the Department of Labor (“DOL”)
is revamping the entire labor certification process for permanent positions. We will be preparing a summary and FAQ shortly and will be reviewing
cases on an individual basis. Generally speaking GT attorneys are happy with the regulation and feel the it will benefit the majority of employers and
employees. Navigating through the 322 pages of the regulation has been time-consuming and we understand the importance to all of our clients. Keep
posted to the website for updates and further commentary.
The basic premise of the labor certification process remains the same. DOL must certify that there are not sufficient US workers who are able,
willing, qualified and available; and that the employment will not adversely affect wages or working conditions of similarly situated US workers. The
mechanism by which employers will do that however will radically change. Beginning March 28, employers will have only one option for filing a labor
certification application. It will be a two-step process: first, filing a prevailing wage request with the local State Workforce Agency (SWA) and then
filing a labor certification application, after performing and documenting the appropriate recruitment steps (which are all outlined in the new
regulation).
A. Prevailing wages for H-1B - Labor Condition Applications and Labor Certification Applications
The PERM regulations provide for three acceptable prevailing wage sources for both the H-1B labor condition application process as well as the labor
certification application process. The most preferable of these sources is the prevailing wage determination given by the State Workforce Agency or
SWA. The other acceptable sources include independent authoritative surveys and other legitimate sources of wage information that meet regulatory
requirements. The SWA determination is considered the most accurate and reliable. It will be generally valid for up to one year and, if used, will
provide a safe harbor in the event of a wage and hour enforcement action brought by the DOL.
A SWA wage determination is arrived at by looking to the arithmetic mean for the workers similarly employed in the area of intended employment.
Employers may also provide a survey that uses the median of wages of workers similarly employed. Similarly employed generally means substantially
comparable jobs in the same occupational category in the area of intended employment. The recently passed FY 2005 omnibus spending bill (H.R. 4818)
also provides some changes in the prevailing wage determination process. Employers are now required to pay 100% of the prevailing wage as opposed to
95% of that wage. Additionally, when the DOL provides a governmental survey for usage by an employer or the SWA, it must provide 4 levels of wages
commensurate with experience, education, and the level of supervision.
For employees at institutions of higher education, the prevailing wage level takes into account only wage levels of employees at such institutions and
organization in the area of intended employment.
A review of determinations by the SWA is available through an administrative appeal mechanism.
B. The New Labor Certification Process
The process for obtaining a labor certification remains fundamentally the same, but procedurally very different. After the prevailing wage has been
obtained and recruitment is undertaken, the application (new form ETA-9089) is filed with the appropriate DOL processing center.
The employer must post a notice to its own workers as before but must also post “any and all in-house media, whether electronic or printed, in
accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization.”
The employer or its designated agent or attorney may file by mail or electronically. Electronic filings will have PINs associated with them.
Applications will be screened and will then be certified, denied, or selected for audit (either for selection criteria or at random). A priority date
shall continue to be established when “filed” (date stamped or electronically transmitted).
Conversion/refiling will be permitted of a previous application if a job order has not already been placed, by withdrawing the old application and
refiling a new application for an identical job opportunity after complying with the new procedures for recruiting. A new application must be filed
within 210 days of withdrawal of the old application. Filing a new application with a request for the use of the old will be deemed to be a withdrawal
of the previous application. (The risk is that the old application will be withdrawn regardless of whether the employer’s request to use the old
priority date is approved.)
Recruitment: for all professional positions, a job order must be placed with the SWA, and two print ads must be placed in a Sunday paper of general
circulation. An ad in a professional journal (for jobs requiring an advanced degree and experience) may substitute for one Sunday ad. Three other
recruitment steps must be utilized, such as job fairs, websites, and campus recruitment. For non-professional jobs, newspaper ads will be sufficient.
The ads must not only name the employer but must also list at least a wage range for the position. DOL will still require recruitment reports.
Requirements exceeding the SVP level for the position can continue to be justified as arising under a business necessity.
The regulation codifies a great deal of the current practice. It permits, for example, a combination of duties under essentially the same standards as
currently followed. Alternative experience requirements are going to continue to be permitted, although if the alien meets the job by virtue of the
alternative it will be required that the application make clear that any combination of education, training or experience is acceptable. Experience
gained with affiliates of the employer (in the US or abroad) or predecessor companies appears to be acceptable. Layoffs shall require documentation
from the employer that it has notified and considered all potentially qualified laid off US workers (in the occupation in which the labor
certification is sought or in a related occupation, defined as one in which the employee is required to perform a majority of the essential duties as
the occupation in which certification is sought) of the job opportunity and the results of that notification and consideration.
If an application is selected for audit as the result of Certifying Officer (“CO”) review or random selection, the CO will issue an audit letter. A
substantial failure by the employer to provide the required documentation will result in denial and could lead to a determination by the CO which will
require the employer to conduct supervised recruitment in future filings for up to 2 years.
Supervised recruitment (the current directed recruitment) can be required by the CO post-filing or for future applications. Supervised recruitment
will consist of advertising the job opportunity under the supervision and direction of the CO. The CO will: chose the publication; approve the
advertisement; determine the timing of the advertisement; receive resumes directly from applicants; and/or recommend additional or substitute
recruitment. The employer must provide a recruitment report to the CO within 30 days of the CO's request or the CO will deny the case. The Certifying
Officer can, in his or her discretion, grant one extension to a request for documentation or information.
C. Special Procedures for Certain Occupations
Professional nurses will now be held to more stringent standards. A CGFNS certificate will be required as opposed to proof that the nurse has passed
the CGFNS nursing skills exam. However those nurses who have passed the NCLEX-RN examination will be qualified for Schedule A. Temporary licensure
will not be recognized, only full unrestricted state licenses. Unfortunately, requests to expand Schedule A to include other shortage occupations were
not granted.
Good news for performing artists. Those of exceptional ability are now included in Group II of Schedule A. Schedule B was eliminated altogether. Under
the new system there are no changes for labor certification applications for sheepherders (treated differently by statute). Further, there were no
substantive changes to the Optional Special Recruitment and Documentation Procedures for college and university teachers. Procedural changes will be
discussed in an expanded analysis.
Employers of live-in domestic workers will be pleased to note most of the certification requirements have not changed but certain documentation
required on the ETA forms will no longer be required, unless the employer is audited or if requested by the CO. It is also interesting to note that
even with the elimination of Schedule B, the one year of paid experience required in another household remains necessary under the new system,
although it is still not allowed to be used as a minimum experience requirement.
D. Appeals and Review
PERM introduces some new procedures to this part of the process. The Chief, Division of Labor Certifications, is the National Certifying Officer. The
Chief and the COs at the application processing centers (rather than regional offices) have the power to grant or deny labor certification
applications. In making the decision, as he/she does under current law, the CO will consider whether there is a US worker who is willing, able,
qualified and available for the position. PERM considers the US worker to be able and qualified if he/she can acquire the skills necessary to perform
the job during a reasonable period of on-the- job training.
The CO will no longer issue a Notice of Findings – the labor certification application will be granted or denied. Requests for review or
reconsideration of a denied labor certification application must be filed within 30 days of the date of the denial. No new evidence will be considered
as part of this review or reconsideration.
If the CO determines that the employer made a material misrepresentation regarding the application, failed to produce supporting documentation or
produced inadequate documentation, the employer may be required to conduct supervised recruitment in labor certification applications for up to 2
years. This provision is new to PERM.
An approved labor certification can be invalidated by the DHS or the Department of State upon a determination of fraud or willful representation of a
material fact regarding the labor certification. If the possible fraud or willful misrepresentation is discovered before the final determination, the
case is referred to the DHS for investigation with a copy to the DOL Office of Inspector General. If 90 days passes without criminal indictment or
notice of an investigation, the CO may continue to process the application.
A labor certification can be revoked by the CO if it finds the labor certification was “not justified.” This means that it can be revoked for any
reason that would have resulted in denial of the application for permanent employment certification. A notice of intent to revoke is sent out,
containing a detailed statement of the grounds and the 30 day time period for rebuttal by the employer.
As under current law, the Board of Alien Labor Certification Appeals (BALCA) will have jurisdiction over appeals of the denial of a labor
certification. It will also have jurisdiction over appeals of the revocation of certifications and of decisions regarding prevailing wage
determinations issued by the CO. Only an employer can now appeal a decision to BALCA. BALCA will no longer remand the decision to the CO for further
consideration or fact-finding and decision; it will affirm the decision below or direct the CO to grant the certification, overrule the revocation or
overrule the prevailing wage determination. BALCA can also direct that a factual hearing be held. A request for BALCA review of a denial or revocation
of certification must be filed within 30 days of the date of the determination.
As we review and analyze the regulation we will continue to keep you posted.
|
|
|
|
|
|
