business - session 1 - perm issues - loomis-zakharova - ppt - 01... · (4) the davis‐bacon act...

Lola S. Zakharova, MacDonald, Hoague & Bayless ([email protected])

Abby Loomis, Christoffersen Law P.S. ([email protected])

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PERM Job Requirements – Must They Be Quantified

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2018 NW Regional Immigration Law ConferenceBusiness Track, Session 1

PERM Issues

March 15-16, 2018 of 16

Examples of Unquantified Requirements

Knowledge of object‐oriented programming

Proficiency with SQL and relational database engines

Experience with the following languages: UJML, C, C++, Java, .NET, VC++

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When did this issue come up?In 2016, employers began to receive denials based on “unquantified requirements.”If H.14 requirements are not “quantified”, DOL assumes H.6/H.10 “quantity” applies.If Section K doesn’t show beneficiary has H.6/H.10 quantity in the area, DOL would deny

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PERM Issues

March 15-16, 2018 of 16

BALCA Cases Matter of Smartzip Analytics, 2016 PER‐00695 (Nov. 9, 2016) (AILA doc #16111038): BALCA noted that neither the 9089 nor the form instructions solicits a duration requirement, so employer is not on notice of a duration requirement. Not reasonable for DOL to assume the H.6/H.10 quantity applies. Denial reversed.

Matter of Activehealth Management, 2016‐PER‐00760 (Jan. 19, 2017)

Matter of Pixar, 2016‐PER‐00835 (July 17, 2017)(AILA doc # 17072403

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FAQ DOL issued an FAQ on March 6, 2017 (AILA doc # 17030633.

FAQ says employer must specify the amount of experience, training and/or level of education for each skill in H.14.

FAQ was “temporarily” removed on March 10; OFLC said it would clarify and republish the FAQ.

June 6, 2017 AILA DOL Liaison Committee Meeting Minutes (AILA doc # 17062135): OFLC indicated it is still reviewing the FAQ but following Smartzip Analytics in the meantime.

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PERM Issues

March 15-16, 2018 of 16

To Quantify or Not to Quantify

Reasonable period of on‐the‐job training: (1) with low quantity [e.g. 6 months], can you gain this in a reasonable period of on‐the‐job training? Alternatively, with no quantity, how can you document that you CANNOT gain it in a reasonable period of on‐the‐job training.

Is there an objective way to prove applicant’s level of knowledge is not enough?

If employer uses a test to determine knowledge, will the test pass DOL scrutiny.

Conservative course is to quantify.

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Prevailing Wage Issues

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PERM Issues

March 15-16, 2018 of 16

Prevailing Wage Issues Overview of the Basics What? Prevailing Wage Determination (PWD) is the determination made by the DOL by

using arithmetic mean of the wages of workers similarly employed in the area of intended employment. Specific to 1) occupational classification; and 2) geographic area of intended

employment. The PWD is determined by using: (1) a collective bargaining agreement (CBA), if applicable;(2) the Occupational Employment Statistics (OES) survey; (3) an alternative survey; (4) the Davis‐Bacon Act (DBA); or (5) the McNamara‐O’Hara Service Contract Act (SCA).147

If the job opportunity is covered by a CBA, that wage will be considered the PWD except for jobs in institutions of higher education and research entities, and for professional athletes.

If the job opportunity is not covered by a CBA, the prevailing wage must be determined by using the OES survey, unless the employer provides an acceptable alternative survey in accordance with the PERM regulations.

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Overview of the Basics Why? A mechanism to ensure the alien’s employment will not

adversely affect the wages and working conditions of U.S. workers.

When? Pre‐requisite to any PERM filing: An employer must obtain from the Department of Labor an occupation‐ and location‐specific wage determination confirming that the offered salary meets or exceeds the weighted mean wage for the geographic area.

Who? Employer submits the PWD to the DOL; the DOL issues a determination.

Where? DOL National Processing Center (NPC) through iCERT, a web‐based user account for both LCA & PERM filings.

How? Employer completes and submits prevailing wage Form ETA 9141.

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PERM Issues

March 15-16, 2018 of 16

Authority 20 CFR part 656, subpart D – 656.40 and 41.

DOL FAQ

Stakeholder minutes

BALCA Decisions

Prevailing Wage Determination Policy Guidance, November 2009, http://www.flcdatacenter.com/download/NPWHC_Guidance_Revised_11_2009.pdf

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Practice Pointers Inform the employer about the obligation to pay prevailing wage.

Make the employer aware of, and analyze, and document the employer’s ability to pay the proffered wage . Even though the “ability to pay” evidence is not presented until the I‐140 stage, the “ability to pay” analysis must

take place early ‐ without proper analysis and preparation pre‐PERM, theI‐140 could result in a denial or Request for Evidence.

Must demonstrate the “ability to pay” the “proffered wage” starting on the date of the PERM filing (the date the priority date is established) continuing until the beneficiary’s permanent residence application is approved.

The proffered wage is the wage listed on the Form ETA‐9089 which should be at least equal to the issued PWD.

Review the Yates Memorandum, Determination of Ability to Pay under 8 CFR § 204.5(g)(2) (May 4, 2004) for guidance on the “Ability to Pay.”

Proffered wage may be prospective – the employee does not have to be paid the prevailing wage for the PERM job as determined by the DOL until the employee obtains permanent residence.

Advise employers that significant time may pass from the completion of recruitment, filing of the PERM, possible audit, PERM approval and preparation of the immigrant visa petition.

All set? Create and register iCERT account ASAP Involves business existence verification May take several weeks before you can submit PWD

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PERM Issues

March 15-16, 2018 of 16

Practice Pointers The USCIS is increasingly focusing on the job opportunity during the AOS interviews. Questions asked include job location, salary, travel requirements, and the frequency of working from home.

Review the PWD (and other PERM and the I‐140 filing) with the foreign national before the interview to ensure that the job opportunity continues to exist under the terms of the PWD.

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Timing Considerations OFLC reports processing times between 80 and 90 days for PERM PWD.

When PWD is obtained, check the validity date: 20 CFR §656.40(c) authorizes a validity period of 90 days to one year.

The employer must begin recruitment or file the application within the validity period of the PWD.

In light of this, consider the timing of the PWD filing: Employer may obtain PWD before launching recruitment (preferred) or while recruitment is pending .

Since recruitment must take place within 180 days of filing PERM, employer may begin recruitment prior to obtaining the PWD. But, if the employer starts its recruitment before obtaining the PWD, the PWD

is not valid after its expiration date.

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PERM Issues

March 15-16, 2018 of 16

Anticipate occupation category and wage

Before filing the request, anticipate the DOL’s determination.

2009 Prevailing Wage Determination Policy Guidance sets out the steps the DOL takes in making a PWD .

Need to be familiar with concepts: Standard Occupational Classification – Occupational Information Network (SOC‐O*NET or O*NET for short)

System of coding/classifying jobs by skills, knowledge and work activities. Provides the “quantitative parameters” to determine the appropriate wage level through the SVP and job zone

standards

Specific Vocational Preparation (SVP)/ Job Zones Range of time needed to learn techniques/skills for average performance of a specific occupation. In PWD, wage level is assigned based on where the employer’s education and experience requirements fit within this

quantitative parameter

Use OES/SOC database to search the SOC code for your occupation.

Use Appendix D of the Guidelines, which lists Professional Occupations and Training Categories and “usual education” required for PWD purposes Example: SOC 15‐1132 (Software Developers, Applications), Job Zone Four: Requires ‘considerable’ prep; “Considerable’ =

SVP Range 7.0 < 8.0 = over 2 years, up to 4 years. For Job Zone Four, Normal to the Occupation (max) is Bachelors + 2 years, or 4 years experience.

Once you have your SOC Code and SVP/Job Zone, use Appendix B: Check Sheet for Use in Determining OES Wage Level.

Four Levels: I – Entry; II – Qualified; III – Experienced; IV – Fully Competent.

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Point‐Based System Considerations• Education & job zone

• Experience & training

• Supervision

• Travel

• Licenses & certifications

• Requirements inherent vs integral to the occupation (i.e. Licenses, specialized experience, certifications)

• Duties not “normal” to the occupation (i.e. Foreign language)

• Combination of duties

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PERM Issues

March 15-16, 2018 of 16

How to avoid delays beyond processing times1. Details on ETA 9141:

Use free‐form boxes on ETA 9141 to provide additional explanations to get the correct determination and avoid an RFI.

Job title – not determinative, but relevant. If the title sounds more senior than what the duties entail – e.g. Manager for individual contributor – explain the extent of authority and supervisory duties.

Job duties ‐must not be vague.

Requirements – if supervisory duties, indicate whether reports are at the same or lower level. If travel or licenses are normal for the position, but it is not clear that they are normal, explain why required. Explain the areas and frequency of travel.

To differentiate explanations from substantive job requirements, Box E.b.5 should indicate that the information is ”For explanatory purposes only .”

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How to avoid delays beyond processing times2. Use Collective Bargaining Agreements: Employer must use the CBA if it exists.

Check “Yes” on Box D.2 of the ETA 9141 if CBA is used.

Submit letters on the employer’s letterhead and the union rep’s letterhead stating the relevant section of the CA, the CBA job title, and the wage level.

Must also submit the CBA which includes:

1. Statement of coverage, i.e., what workers are covered and the limits on coverage;

2. Job details, including duties and the levels involved;

3. Activities and conditions;

4. Wage, which should be the result of arm’s length negotiations;

5. Signatures putting the CBA into effect; and

6. Evidence that the CBA is in effect, i.e., the validity dates and any applicable extensions.

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PERM Issues

March 15-16, 2018 of 16

How to avoid delays beyond processing times3. Use Alternative Wage Surveys:

If the initial analysis suggests that the DOL prevailing wage is higher than the employer’s offered salary, be proactive and submit an alternate wage survey with the initial prevailing wage request. No reason to wait for an unfavorable PWD.

The survey‐providing employer must make a written showing that the survey meet the regulatory requirements:

1. Appropriate occupation; 2. Evidence that employer is using the most recent survey; 3. Date when the data was collected; 4. Publication date, which could be either at the time of print or posted to an online database; 5. Methodology used to reach the wage; 6. Job description for the survey position to ensure that it matches the employer’s job description; 7. Leveling information if appropriate; 8. Wage data, which should include the number of employers and number of employees used to arrive at the wage; 9. Evidence of cross‐industry survey, explained in the methodology and apparent in the list of survey participants; 10. Wage information from all survey wage levels and similar survey occupations; and 11. Information regarding the survey’s geographic coverage.

• Check “Yes” on Box D.4 of the ETA 9141 if the survey is used providing the survey’s name and date of publication.

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How to avoid delays beyond processing times4. Respond to Requests for Information:

Employer has 7 days to respond.

Takes additional 3 to 4 weeks until the PWD is issued.

Most common reasons for RFIs: vague job duties; vague requirements; unclear supervisory relationship.

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PERM Issues

March 15-16, 2018 of 16

Consistency Matters

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Common Issues and Strategies Common Issues:

Incorrect wage level assigned. Alternative wage survey ignored. Incorrect occupational classification assigned.

Strategies:

Seek a redetermination within the iCERT system: For legal arguments, cite regulations, guidance, O’NET, or BALCA decisions.

Example: if the PWD relies on OES without acknowledging and considering the employer‐provided survey, cite to Prevailing Wage Determination Policy Guidance: “NPWHC shall consider wage data that has been furnished by the employer.”

For factual arguments, provide robust explanation of what is wrong with the result and why a different wage is correct. May provide factual materials Example: If the level assignment is at issue, may provide a completed Appendix B: Check Sheet for Use in Determining OES Wage

Level, to show why you arrive to a different level. May also include affidavits from the employer’s HR explaining the various levels of the occupation and why the position is at a level different from the assigned.

Submit a correction request via email if clear government error (e.g. validity less than 90 days; mismatch between the salary amount and the checked wage level).

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PERM Issues

March 15-16, 2018 of 16

Common Issues and Strategies Strategies:

If the redetermination is still problematic, the employer may seek review by the Prevailing Wage Center Director per 20 CFR 656.41 within 30 days of the determination.

Review solely on the record.

No specified format of appeal or time for review.

The certifying officer may affirm or modify.

If the decision is unfavorable, may appeal to BALCA within 30 days.

Submit a new PWD request after addressing points which may have caused an issue at the first place.

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BALCA updates

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PERM Issues

March 15-16, 2018 of 16

Rulemaking by FAQ Matter of Guess? Inc., 2015‐PER‐00504 (June 28, 2017)

PERM required a CPA license. Section K did not indicate foreign national had the license, contrary to the Section K FAQ.

BALCA found FAQ is not an appropriate vehicle for correcting deficiencies in the form or instructions.

Do DOL FAQs Serve as Guidance or as Law? AILA Practice Pointer, AILA doc # 17090540.

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Multiple Positions & Ad Content Capgemini America, Inc., 2013‐PER‐01958 (Dec. 21, 2017). Multiple position print ads stated requirements not on the 9089. Employer argued those applied to the other positions covered by the ad. BALCA affirmed denial because ads not clear which requirements applied to which positions.

Opensoft, Inc., 2013‐PER‐00867 (August 22, 2017). Same issue with a travel/relocation requirement.

Conclusion: Be very clear which requirements apply to which positions. “Some positions require….” (See Microsoft Corp., 2011‐PER‐00324 (Feb. 29, 2012)

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PERM Issues

March 15-16, 2018 of 16

Another Multiple Positions Issue CTS Technical Services, 2013‐PER—1132 (Nov. 6, 2017): Employer hired several candidates but argued there were multiple openings. DOL denied saying no evidence in record of multiple openings. BALCA said issue is whether employer could document that multiple positions existed from the outset; because print ads used the plural, positions, BALCA reversed the denial. Discussion of prior BALCA cases shows importance of being as clear as possible about existence of multiple openings in the ads, etc.

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Rejected on Resume Cases saying rejection on resume proper:

Marlabs, 2013‐PER‐01125 (Nov. 9, 2017): rejection based on lack of required education (bachelor’s degree) proper; resume clearly showed not qualified.

Sunnyvale School District, 2014‐PER‐00620 (June 22, 2017): Rejection proper because resume showed lack of master’s degree and lack of “major” requirement of teaching credential.

New All Star Wireless, LLC (2015‐PER‐00020 (Jan. 30, 2017): Rejection for lack of degree proper.

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PERM Issues

March 15-16, 2018 of 16

Rejection on Resume, cont’d Southstar Fire Protection Co., 2012‐PER‐03304 (June 20, 2017):

Resume showed no experience designing fire suppression systems. BALCA held applicant’s combination of related previous experience raised a reasonable possibility he could acquire the skills with a reasonable period of on‐the‐job training and he should have been interviewed.

Major versus “subsidiary” requirements. Candidate might not indicate a “subsidiary” requirement on resume.

If resume indicates a range of experience, training or education, raising the possibility candidate is qualified, should be interviewed.

Relies on Kennametal, Inc., 2010‐PER‐01512 (March 27, 2012)

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Local/Ethnic Paper Gallup McKinley County Schools, 2013‐PER‐03215 (October 3, 2017): DOL denied on the grounds that the local/ethnic paper was not the most appropriate local/ethnic paper. BALCA reversed denial saying local/ethnic paper need only be an appropriate paper, not the one most likely to bring applicants (which is the standard for print ads).

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PERM Issues

March 15-16, 2018 of 16

Contacting Applicants Georgia Browns, 2015‐PER‐00576 (October 31, 2017): BALCA affirmed denial where employer did not make actual contact with applicant or attempt to contact by mail, when resume included mailing address. Suggests employer should attempt to contact applicants through all contact means provided on resume/application.

NOTE: this was a supervised recruitment case where there is higher scrutiny. OFLC has indicated in Stakeholder meetings that email may be sufficient in some cases (AILA Notes from DOL OFLC Quarterly Stakeholder Meeting, Dec. 5, 2017, AILA doc # 17122804).

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Travel versus Relocation Technology Consultants‐MA, 2013‐PER‐02117 (October 27, 2017): Prevailing wage request and 9089 indicated worksite would be various unanticipated worksites throughout the U.S., but Employer answered “no” on prevailing wage request to question of whether travel was required. BALCA reversed denial, indicating employer required relocation, NOT travel. Therefore, the prevailing wage request was completed properly.

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PERM Issues

March 15-16, 2018 of 16

business - session 1 - perm issues - loomis-zakharova - ppt - 01... · (4) the davis‐bacon act...

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