Immigration Law

Vague PERM Requirements: BA or Master's in Any Field

Posted on November 14, 2009
In a recent decision issued from the Nebraska Service Center, which came to me without the file number and with the petitioner information excised, the Chief of the AAO sustained the petitioner's appeal of an NSC denial for an I-140 Immigrant Visa Petition...

PERM Skills Analysis

Posted on November 08, 2009
An interesting article appeared in the internet regarding transferable skills. An analysis of transferable skills may be used to determine what positions a person may fill if they are seeking a similar position with alternate skills. The PERM Rule provides that Employers must be prepared to provide some training for workers who seek to fill a new and different job...

BALCA Puts Kellogg and PERM Back in the News

Posted on November 02, 2009
In a recent cases, BALCA issued an interesting decision based on a Kelogg analysis. In Agma Systems, LLC, 2009-PER-132, the Employer refused to put the "Magic Language" on the PERM application. The language, "Employer will accept any suitable combination of education, training or experience," is required when the alien is working for the employer and only qualifies because of alternative requirements...

Interview with David Ware: PERM in time of Recession?

Posted on October 26, 2009
David Ware, a well known immigration lawyer and lecturer, will be joining our ILW teleconference on Wednesday, October 28. It starts at 2:00 p.m. and is the first of three teleconferences entitled "PERM for Experts." David will kick off the conference by talking about issues stemming from the current economic crisis...

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BALCA Decides PERM Prevailing Wage Cases

Posted on October 18, 2009
I just returned from several PERM workshops and conferences, one in Puerto Rico and one in Florida, and decided to write about some recent BALCA decisions we discussed. The Board was quiet about prevailing wage issues for some time after PERM was introduced, but recently some new cases have been decided, giving us some insight into how the process for determining prevailing wages works and how disputes might be resolved...

PERM FAQ's: The Most Frequently Asked!

Posted on October 09, 2009
Here are some PERM FAQ's that are the most frequent of the frequent. Can applications be filed by FAX? No, only on-line or by (certified) mail. Is the on-line system hard to use? No. According to the DOL it's customer-friendly. What are the advantages of on-line filing? The mail-in system requires DOL employees to enter the information for you into the electronic system, thus resulting in errors and delays...

7th Circuit: PERM Approval Valid Only180 Days

Posted on October 04, 2009
The United States Court of Appeals for the Seventh Circuit issued a decision on August 18, 2009, Durable Manufacturing Co., v. United States Department of Labor, No. 08-4122, regarding the requirement that labor certification approvals be filed with DHS within 180 days...

BALCA Holds PERM Remands Permissible

Posted on September 28, 2009
The controversy on PERM remands has gone full circle. In the first PERM case, Healthamerica, 2006-PER-1, 2006, the Board of Alien Labor Certification Appeals held that the PERM Rule does not permit remands. The reasons given were that there was nothing in the regulations to permit Remands and in the Preamble to the PERM Rule DOL had stated that there was no need for remands...

States Receive Federal Grants to Process PERM Applications

Posted on September 21, 2009
Have you ever wondered about the separation between State and Federal Governments in the context of PERM applications? PERM is a federal law and a federal program that occurs in the federal environment. However, the States are called upon to provide services for in-state PERM processing...

PERM Workshop in San Juan, Puerto Rico on September 24, 2009

Posted on September 14, 2009
I will be in San Juan on September 24 giving an all-day workshop to the AILA group in Puerto Rico. The syllabus of the workshop is the following: PERMWorkshop September 25, 2009 Session 1: Mechanics of a PERM Case Preparation of PERM: Understanding O"Net ABC's: Job Titles, Duties, & Occupations; Understanding Job Zones & SVP...

PERM Definition: "Closely Held Corporation"

Posted on August 31, 2009
The instructions to Form 9089 state that "Closely Held Corporations are corporations that have relatively few shareholdersrs and whose shares are not generally traded in the securities market." The question that appears on Form 9089 is whether the employer is a closely held corporation, partnership or sole proprietorship in which the alien has an ownership interest...

File PERM on Time Despite Problems with On-Line Registration

Posted on August 23, 2009
A recent BALCA decision illustrates the problems that some Employers have registering on-line to use the electronic filing system. Sometimes it just doesn't work! Efforts to correct errors or bugs by e-mailing DOL, writing letters, or calling do not always bring results...

Comments on PERM Stakeholders Conference

Posted on August 16, 2009
These meetings are held at various times during the year, during which attorneys and organizations can present questions to DOL staff regarding the PERM process. During a recent meeting, at issue was the method for determining Job Zones for particular SOC coded occupational classifications and the factors to be considered in determining what the Job Zone should be for an occupation...

Alien Work Experience on PERM Form 9089

Posted on August 02, 2009
On Form 9089, Item K on page 7 states, "List all jobs the alien has held during the past 3 years. Also list any other experience that qualifies the alien for the job opportunity for which the employer is seeking certification." The instructions clearly mean the following: (a) List all jobs (employment) during the last three years, immediately preceding the filing of the form; (b) List any other experience (i...

PERM: Is Sheepherding an option for you?

Posted on July 27, 2009
The Immigration procedures for Sheepherders (an important part of American history, culture and economy) are complex and have always merited special attention by the U.S. Government. In a special advisory issued in 2001 (ETA Advisory: Field Memorandum No...

About PERM: What Does "Training" Mean?

Posted on July 19, 2009
The PERM Law and BALCA decisions are replete with the term "training," but in the same authorities there is no concensus about what it means. In olden times, it usually meant an apprenticeship or entry into a guild of workers, and in industrialized England, Dickens wrote in Great Expectations that Pip was given to his master to train as an iindentured servants...

PERM Options for Ministers of Religion

Posted on July 13, 2009
Traditionally, ministers of religion apply for permanent residency under I-360 petitions. The petitions are rigorously reviewed to prevent fraud. Among the many prerequisites are two years experience in the profession during the two years immediately preceding the filing of the petition...

OIG Investigations of Fraud, Waste and Abuse

Posted on July 05, 2009
The office of the Inspector General of the United States Department of Labor maintains a site on the internet with interesting information about audits of DOL programs. The site opens with the phrase, "Understanding the Audit Process in DOL," and identifies key issues, such as the selection, definition, and processing of audits...

PERM: Who Can File for What?

Posted on June 29, 2009
The PERM process varies according to the type of job for which the Employer is seeking certification. 1. There is a basic process described under 20 CFR 656.17 which is used for most PERM applications. Basic processes are filed with the DOL electronically or by mail...

Second Preference without PERM

Posted on June 22, 2009
As we explained last week, 2nd preference applies not only to aliens with advanced diplomas, but also to aliens of exceptional ability, as defined by DHS regulations. While an approved PERM case is normally required, aliens may also apply without a PERM approval under Schedule A...

PERM in the Fast Lane

Posted on June 15, 2009
This weekend while mapping out some PERM applications, I took into consideration the fact that the third preference is unavailable, and will probably not be available for years to come. The third preference is used by persons who have two years of experience, education or training, or a Bachelor's Degree...

About PERM Disbarment

Posted on June 08, 2009
The original PERM Rule included a provision for disbarment, which stated that disbarment would occur for purposes of PERM if a person was disbarred elsewhere, by another government organ, but PERM itself had no mechanism for disbarment. The original Rule stated, "No person under suspension or disbarment from practice before any court or before the DHS or the United States Department of Justice's Executive Office for Immigration Review is permitted to act as an agent, representative or attorney for an employer and or alien under this part...

BALCA on SWA Wage Determinations

Posted on June 01, 2009
BALCA has ruled that an employer may not substitute a self-generated wage determination for one properly determined by the State Workforce Agency. See King's Garden 1 Chinese Restaurant, Inc. 2008-PER-228, April 13, 2009. It is a well-known fact that the SWA is supposed to issue the prevailing wage determination, however, in this case the Employer merely went to the FLC Wage Data Center Online Wage Library and used what it determined to be the appropriate prevailing wage...

How NOT to Predict Success in a PERM Case!

Posted on May 16, 2009
Many times employers ask what the chances are for an PERM application to be approved. The question is normal in the business world where percentage estimates for gain or loss are widely used in planning transactions. While the question is normal per se, it belies ignorance of the mechanism of the PERM process, and the answer to the question can only be expressed by different types of measurements, based on the regulations and legal standards involved in the search for a worker...

Update: How to Substitute a New Employer in a PERM Case

Posted on May 11, 2009
First, I would like to thank Christian S. Allen, Esq., who wrote an article on this topic for the PERM BOOK II. I have written a blog article about this topic before, however, since I was asked to speak about this on an ILW Teleconference last week, I decided to add some new perspectives in today's Blog...

Can Aliens Appeal Denials of PERM Applications?

Posted on May 04, 2009
Our colleagues, Gary Endelman and Cyrus Mehta, wrote a comprehensive article addressing appeal issues in PERM cases. David Pakula, Michael Piston, and Sam Udani were also cited for their extensive input. The article, called "What If I Don't Agree?: Review of a Denial of a Labor Certification in Federal Court," begins by opining the paradox that while the alien bears the burden of proof to establish eligibility for permanent residence under the Immigration and Nationality Act, the PERM regulation does not permit the alien to file an appeal of denial to BALCA or pay the Employer's attorney to file an...

The phrase "Prevailing Wage" is a Term of Art & a Wage Calculation

Posted on April 27, 2009
When people think of the prevailing wage, they usually have a specific dollar amount in mind, where the prevailing wage is a concept expressed in digits, not in words. However, the Prevailing Wage is also a Term of Art with a specific meaning within the context described in the PERM rule...

Minimum Requirements for 2nd Preference Petitions

Posted on April 13, 2009
I received an interesting comment to last week's blog entry. If you haven't read the entry, please take a quick look, and then continue reading this entry. We were talking about the interplay between Job Zone Levels, SVP, Prevailing Wage Determinations, and DHS Preference Categories...

Job Zone Levels, SVP Levels, Wage Levels, and Preference Categories

Posted on April 06, 2009
These are four different concepts that interact among themselves. Job Zone Levels are used on the O*Net to categorize jobs according to complexity. There are five job zone levels, from level one (jobs requiring little or no training) to level five (jobs requiring higher education, training and experience)...

Part H: The Heart of a PERM Case

Posted on March 29, 2009
In Part H, the Employer has to put all the information about the job opportunity, the job details and the minimum requirements. An engineering case, for example, might be classified as Job Zone 4, which permits only 2-4 years total combination of education, experience and training (SVP)...

BALCA Trends: Back to the Future

Posted on March 23, 2009
When the PERM Rule became effective in March 2005, the rules for labor certification changed drastically. The idea of the makeover was to create an electronic process (hence, Process Electronic Review Management called PERM) that would enable DOL to issue decisions electronically in record time...

Inconsistencies in Job Zone Three: Electricians

Posted on March 16, 2009
Recently I discussed a report of Job Zone Five job occupations and commented that out of more than 100 jobs listed in Zone Five, only eight might be used in business or corporate settings. For more details, please look at last week's blog. However, my curiosity was piqued by the material presented, and I decided to continue my investigation of Job Zones and Occupations in today's blog...

A Closer Look at Job Zone Five

Posted on March 08, 2009
To qualify for 2nd Preference, aliens have to have PERM cases filed for occupations classified as Zone 4 or Zone 5 on the O*Net. Zone four allows 2-4 years of Specific Vocational Training. This means, that if you require a Master's Degree, and the occupation corresponds to Zone 4, you can not require any experience in the job offer without exceeding SVP...

How to Correct Misfiled I-140 Petition

Posted on February 28, 2009

Beware the Project Manager!

Posted on February 23, 2009
The job of "Project Director" was very widespread and popular at one time. In the old DOT it was described with very vague, generic language, which enabled it to be used in many industries to describe a wide range of jobs. Consider the DOT version (which is now extinct): Project Director: 189-117...

Copying Job Descriptions from the O*Net

Posted on February 08, 2009
One mistake made by many employers and their representatives is that they copy job descriptions for PERM cases directly from the O*Net. This error is very transparent and must irk the examiners at DOL who review PERM cases. The job descriptions in the O*Net contain no detail and therefore are not realistic presentations of jobs...

Learn about DOL's New 9089 Form Now!

Posted on February 01, 2009
Attendance is only permitted by pre-registration on-line at http://www.dtiassociates.com. The DOL has announced training sessions on the new 9089 form for PERM applications. The agency uses the phrase "Stakeholders" now in fashion to describe persons who are interested in the process -- typically, employers, corporate executives, student liaison officers, attorneys, and state or local government officials...

Danger Signs in PERM Cases

Posted on January 26, 2009
Thomson West has completed delivery of the 2008-2009 edition of their Labor Certification Handbook. The book is edited by Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo. The Handbook lists a series of dangers for PERM processing, which should be taken seriously by Employers and their attorneys...

New FAQ's on Supervised Recruitment

Posted on January 16, 2009
The DOL now has 12 FAQ's posted regarding Supervised Recruitment. Supervised Recruitment is similar to "regular" or "traditional" recruitment such as the recruitment that was required before PERM was introduced. The supervised recruitment policy of DOL is embodied in the FAQ's which now include the following 12 FAQ's: FAQS ON SUPERVISED RECRUITMENT Under what authority can the Department of Labor's Office of Foreign Labor Certification select an employer's application for supervised recruitment? 20 CFR 656...

Yearly Job Loss Worst Since 1945

Posted on January 10, 2009
This was a headline on the front page of the Wall Street Journal on Saturday, January 10th. It's a shocking statistic, and prompts us consider the implication this has on PERM processing. According to the article, 2.5 million jobs have been eliminated in 2008, and 1...

Perm Practice Tips -- January 9, 2009

Posted on January 05, 2009
The third in our series of PERM telephonic seminars will take place on Thursday, January 9. The topics we will cover are the following: Attorney Representation in PERM Applications : What is the difference between an Agent and an Attorney? Who may compensate the attorney and for which services? What are the ethical issues in dual representation? Dangers in Attestations:What are the legal implications of attestations? What attestations must the Employer make to file a PERM case? What dangers and conflicts exist? Review of Notice Requirements: What is the difference between recruitment and notice? What types of notice requirements exist?...

SVP Discrepancies by Lori Melton

Posted on December 29, 2008
Lori's article in the PERM Book II is actually entitled "SVP: Discrepancies between the O*Net and the DOT." Laurie explains that discrepancies between SVP determinations in the O*Net on-line database and the now-outdated Dictionary of Occupational Titles can best be understood by reviewing 11 occupations which are most often adjudicated by the Department of Labor in its PERM Determinations...

More about H-1B Beyond the Sixth Year

Posted on December 21, 2008
In my last blog, two weeks ago, I explained how an H-1B worker can change status, even after the sixth year of H-1B status has begun, and then return to H-1B status later, when a PERM case has been filed for one year. I received several comments about this...

How to Extend an H-1B Past the 6th Year with PERM

Posted on December 08, 2008
This weekend I met with a client who is in her sixth year of H-1B status. This should be her last year, since there is a six-year limit for H-1B workers. Her fiancee is a permanent resident alien (green card holder) who wishes to apply for citizenship...

BALCA Decisions: INA v PERM

Posted on December 01, 2008
Remember that labor certifications that have been denied by Certifying Officers may be reviewed by the Board of Alien Labor Certification Appeals (BALCA). The Board's decisions offer a large measure of judicial objectivity, when compared to the decisions of Certifying Officers who view legal issues from the point of view directly in line with those of the Department of Labor...

More about the attorney's role in recruitment procedures

Posted on November 24, 2008
Last week I reported on the July 16, 2008, temporary agreement between a major immigration law firm and the Department of Labor. The agreement contained stipulations regarding the role attorneys play in the recruitment procedure associated with PERM. This week, I will continue to analyze the attorneys role in PERM, based on the October 24, 2008, permanent settlement agreement between those same parties...

PERM Practice Tips: ILW Teleconferences Scheduled

Posted on November 17, 2008
Our next round of PERM teleconferences is scheduled for November 26, December 18, and January 8. The topic covers a large number of specific issues that are confusing and troublesome for practitioners. The first session on November 26, 2008, includes the following topics: Powers and Duties of Agent or Attorney Area of Intended Employment Types of Employment entities Full-Time Employment Job Opportunity Professional and Non-Professional Occupations Tax Exempt Entity All About O*Net Specific Vocational Preparation Update United States Worker Role of State Workforce Agency The second session is on December 18, 2008 What Does "Or Equivalence Mean" ? Foreign Equivalences...

Attorney Do's and Don'ts for Job Applicant Interviews

Posted on November 17, 2008
This topic is of great interest, since the DOL has focused on a national law firm and its method of advising employers to interview US workers for job opportunities. The law firm and the DOL entered into an agreement defining the correct manner of reviewing, interviewing and identifying qualified and non-qualified workers...

Alien may substitute US Employer in PERM Case

Posted on November 10, 2008
While employers may not substitute aliens, in some situations aliens may substitute employers. The change would occur after the PERM case is approved. The new employer would file an I-140 petition and provide documentation why he believes he can be substituted for the original employer, whose name is on the approved PERM case...

How to expedite review of a PERM Denial!

Posted on October 31, 2008
David Pakula, a Florida attorney, wrote the Federal Litigation guide for the PERM Book II. David was asked to opine on the subject of exhaustion of administrative remedies. The issue is whether an employer has to go to BALCA for review and then to federal court, or whether the employer can bipass BALCA and First on the Darby v...

Options for PERM applicants ineligible for H-1B Extensions

Posted on October 20, 2008
I recently received an e-mail from a reader of this Blog. He is a Professor of medicine, and this year is his sixth year in H-1B status. His PERM case was filed in August, 2008, and his H-1B will expired in June, 2009. As a reminder, the H-1B visa is issued for a maximum of six years...

Hard Times for PERM Cases

Posted on October 13, 2008
Along with the financial, political and other crises that we face, labor certification has finally landed on hard times. For many years, there was a low unemployment rate in most parts of the US, and job offers went unanswered in the SWAs and traditional recruitment like newspapers...

Update on PERM Since PERM was introduced

Posted on October 06, 2008
Update on PERM Since PERM was introduced in March 2005, it has gone through basic training and emerged with some significant changes. These include problems with zero tolerance in electronic filing, scope of review for reconsideration and appeal, rigorous application of audits for inconsistent SVP and O*Net Job Zone Levels, prohibition on client payment of attorney fees, proposals to centralize prevailing wage determinations in federal ETA offices, and changes to the PERM form itself...

Will Global Warming Change the Prohibition on Landscape Gardeners?

Posted on September 09, 2008
Oh my, are they still doing that? I am referring to the landscaping cases. For years and years we have been writing about the proscription on landscaping cases. The DOL considers that in the north of the US, where the winter is severe, landscapers cannot work full-time...

Rohit Turkhud on Experience Gained on the Job

Posted on September 02, 2008
Rohit wrote an article for the PERM BOOK II entitled, "Actual Minimum Requirements and Experience Gained on the Job." Gary Endelman's article also addresses this issue, on a policy level. Gary's message to the Bar was not to be afraid of filing applications where experience was gained on the job...

What constitutes a legal full-time job in the U.S.?

Posted on August 26, 2008
We are reminded that the regulations require that PERM applications be presented only for full-time jobs. The definition of full-time, long elusive, depends on the jurisdiction, the profession, industry standards, and the opinion of government agencies...

Should PW Processing be Moved from the SWAs to ETA?

Posted on August 19, 2008
At last week??s ILW Teleconference on PERM, I posed a question which resulted in a lively debate by the guest speakers, especially by David and Michelle. David is a former SWA worker in New York State, who now works for Leon Wildes? Office (Leon is the lawyer who successfully the John Lennon case many years ago based on an argument that there was no mens rea in the British statute under which John was convicted and that mens rea was required in the US statute, ergo, the drug conviction could not stand)...

Fragomen Complaint in Federal Court

Posted on August 12, 2008
The Fragomen firm filed a lengthy complaint which is now available on ILW.COM. It includes two lengthy documents. The first, more than 60 pages, is titled, "Nature of the Action." The second, more than 90 pages, is called, "Motion for Preliminary Injunction...

Lawsuit Filed Against DOL

Posted on August 10, 2008
In the next chapter of the DOL - Fragomen controversy, the firm of Fragomen, Delrey, Bernsen & Loewy, P.A., has filed a suit against DOL to prevent interference with its attorney-client relationship. in actual fact, the DOL, in its attempts to bring order into the Labor Certification chaos, has over-stepped its bounds by creating a chilling effect in the attorney client relationship between Fragomen and its clients...

Experience Gained on the Job!

Posted on July 29, 2008
One question that has become critical is the possibility to use experience gained on the job, especially with applications directed toward 2nd preference. You will recall that the requirement for 2nd preference is an advanced degree, i.e., a master's degree or a bachelor's plus five years of progressive experience...

Who has the burden of proof?

Posted on July 22, 2008
656.1(a) Statutory Burden of Proof (Section 212(a)(5)A) of the INA). Most lawyers do not realize that the statutory mandate clearly places the two main burdens of proof squarely on the shoulders of the Secretary of Labor, not on the employer. One is to certify that no U...

PERM Determinations Valid for Local Area

Posted on July 15, 2008
During the PERM Workshop in Vancouver, one of the participants suggested that an application could be prepared so as to extend its validity beyond the place of recruitment. Practitioners will remember that prevailing wage and recruitment are linked to a specific area of intended employment...

Prevailing Wage Requests

Posted on July 07, 2008
In case you haven't noticed, prevailing wage requests for PERM cases are now centralized and filed in Albany, instead of various offices in the state. The new form is on the Internet at the following address:http://www.labor.state.ny.us/formsdocs/does/ES%20415%20...

DOL Instruction to Attorneys

Posted on July 01, 2008
I'm sure the readers of this Blog know that most of the nation's immigration lawyers went to attend the AILA Conference in Vancouver, BC. While at the conference, many of the lawyers there were concerned about the recent instructions from DOL regarding the attorney's role in the labor certification process under PERM...

DOL Clarifies Attorney Role in PERM Process

Posted on June 17, 2008
DOL issued an FAQ this week offering much needed guidance for attorneys in PERM processing, where an ethical balance must be achieved among the Employer, Attorney and DOL regarding the attorney's scope of representation. Spurred by concerns of attorney participation in the consideration of job applicants, DOL stated that DOL dos not prohibit attorneys and agents from performing analyses to counsel their clients on legal questions that may arise...

DOL Should Revisit the Attorney's Role in PERM

Posted on June 10, 2008
DOL has worked hard to create PERM, a streamlined process to apply for labor certification and is rightfully attempting to maintain integrity in the system, however, the do's and dont's of attorney participation in the PERM process need to be reviewed to determine a proper balance between right and wrong...

The Chill Factor Prior to Interview

Posted on June 03, 2008
A recent BALCA decisions reiterates long-standing policy about treatment of U.S workers. In Gaynor Gardens Homes, Inc., 2007-INA-269, BALCA, March 24, 200, the Board addressed an appeal of denial of certification for the position of Systems Analyst. The Employer had received resumes from applicants, but instead of scheduling interviews, sent a request for pre-interview documentation, including (1) Letter from previous employers verifying 1 year of experience in job offered; (2) Copy of diploma showing a diploma; (3) List of three people who can be contacted as references...

Not everyone needs a PERM Case!

Posted on May 27, 2008
It's a good exercise to review the types of cases that do NOT require a PERM case. The ones listed on "Schedule A" of the PERM Rule, include a number of positions that are pre-certified Physical Therapists Persons who will be employed as physical therapists...

A Curious Glitch!

Posted on May 20, 2008
We encountered a curious glitch on the 9089 form. Our client was filling out part K (alien's experience), and followed the instructions to leave blank the final date of employment, since he was still working in the position. A problem arose, however, because the client had two jobs at the time, one full-time and one part-time...

What's going on at BALCA?

Posted on May 13, 2008
BALCA has issued 243 en banc decisions since the first BALCA decision in 1988. Interestingly, most of the decisions were issued in the first five years. The last decision issued was the now famous PERM case HEALTHAMERICA, 2006-PER-1 (July 18, 2006) (en banc), and in recent years, en banc decisions have been far and few between...

More FAQ's: Centralization in Atlanta

Posted on May 06, 2008
The New PERM BOOK II features a special section on FAQ's, with an introduction by Larry Rudnick. Mr. Rudnick deals with a question of law, whether operating instructions such as FAQ's have the force of law. While for many years we were taught that operating instructions do not have the force of law (compare the old TAG in the DOL regulations), changes have been taking place in administrative law principles, and Mr...

What's new at the Atlanta PERM Center?

Posted on April 29, 2008
The latest numbers on the DOL page (http://www.dol.gov/ ) include figures on wages, price index, salaries, but nothing on PERM! Actually, the DOL has an extraordinary page dedicated to PERM. At first when I opened the link, I thought I had opened a page from the Chamber of Commerce in Perm , Russia...

DOL Dilemma: How to Correct Form 9089?

Posted on April 22, 2008
My colleague reported that he made a mistake on the approved 9089. The form was certified with a serious error on it! The hapless Employer wants to know what to do! DOL has made it clear that after a PERM Form is printed out and sent to an Employer, the agency will have nothing more to do with it...

Cherchez la Reg!

Posted on April 15, 2008
As in any area of law, the basic rules and procedures, laws and regulations, are the most important tools of practice. Sam Udani, publisher of ILW.COM and I talked about this years ago, so when the PERM law was finally published, we decided that the PERM BOOK would include a heavy emphasis on the regulations themselves...

The New Form 9089

Posted on April 04, 2008
DOL has published the New Form 9089 in the Federal Register. I decided to take a look and see what's new, what's changed, what's better, and what, if anything, is worse. However, in this Blog entry, I would like to explain that by chance last week's Blog was written just as the new Form 9089 was being released by DOL...

Getting Ready for PERM BOOK II

Posted on March 31, 2008
While reviewing the PERM regulation, so many issues come to mind to be included in the PERM BOOK II. Have you ever thought about the OMB approval for the 9089 form, what it says and what it means? Part "P" on page 10 of the form contains OMB information and the Paperwork Reduction Act Information Control Number...

Nothing New Under the

Posted on March 24, 2008

Nixon Then, Bush Now

Posted on March 18, 2008
On Friday the 14th of March, we had a PERM Workshop in NYC. Participants came from all around the country, and I want to thank them for taking the time and trouble to be with us. The speakers were excellent and provided a stimulating and educational day-long seminar on the entire PERM process...

Running in Overdrive

Posted on March 11, 2008
Hi, Everybody! The last two weeks have been very hectic. I had to go to Sao Paulo to meet with the US Consuls, as part of the preparation of my articles for the AILA Visa Processing Guide. I wrote an update for Sao Paulo, Rio de Janeiro, Lisbon and Ponta Delgada...

All about those audits....

Posted on March 04, 2008
While getting the PERM BOOK II ready to go to press, I've been working with the writers who will contribute articles on PERM topics. The topic everyone wants to write about is the one regarding the recent rash of audits. Although it has been perceived as one problem, it is actually a series of issues, having coalesced into "the audit fiasco," including SVP, SOC, O*Net, JobZoneLevels, Minimum Requirement, and Audits...

March 14: PERM Workshop in NYC

Posted on February 25, 2008
Mark your calendar. March 14th the PERM Team will be back with another PERM Workshop. In case you have not been to an ILW Workshop, as Cole Porter said, they are definitely the top. You immerse yourself in PERM all day, and even during lunch. Sam Udani makes each Workshop a delectable gourmet experience, but there is no other opportunity anywhere to immerse yourself in an intense PERM forum, where you can share your thoughts, experiences, and questions which each other and learn everything you wanted to know about PERM...

PERM BOOK II

Posted on February 18, 2008
The PERM BOOK II is being readied for the press, and we have a large number of improvements over PERM BOOK I that I would like to tell you about. First and foremost, the PERM BOOK II will carry all updates to the PERM Rule, Frequently Asked Questions, with comments on Stakeholder Meetings and Liaison Reports...

College and University Teachers

Posted on February 12, 2008
The PERM rule includes a separate part for college and university teachers. Located at 20 CFR 656.18, it is called "Optional special recruitment and documentation procedures for college and university teachers." The word "optional" refers to the fact that the employer has the option to either apply under this section or under 656...

How to place a PERM ad!

Posted on February 05, 2008
Recently I spoke to a colleague whom I had not seen for 25 years. We discussed a minor point about PERM. The question had to do with selecting the proper newspaper for the two Sunday ads and a local newspaper for the third ad. (The position was Professional and required extra recruitment...

Filing Labor Certs the Second Time Around

Posted on January 28, 2008
I always wondered why labor certifications were valid indefinitely. Under the pre-PERM rule, once approved, you could use it any time, even more than once (if the alien ported to a new employer). I always thought it was strange that labor certifications could be used anytime in the future, since so much attention was paid to the prevailing wage...

Identifying Professional Jobs for PERM Recruitment

Posted on January 22, 2008
The PERM rule requires three additional recruitment efforts for Professional positions, however, although the term "Professional" is used as a term of art, it is not intuitive, as we have been accustomed in other applications of the term. The term "professional" is defined in Section 656...

Take a Walk down SVP Lane

Posted on January 15, 2008
The great problem of the day for PERM practitioners is the convoluted interpretation of SVP that the DOL has used to establish training criteria on the O*Net. DOL replaced the Dictionary of Occupational Titles (DOT) and its SVP standards, used successfully for half a century, with the Standard Occupational Classification (SOC), a less reliable standard for measurement of training time, including education, training and experience...

Same Alien, Different Employer

Posted on January 08, 2008
Under the demise of the substitution rule in July, 2007, it is no longer possible for employers to substitute aliens. Previously, an Employer could take a labor certification approved for Alien "A" and use it to certify Alien "B," provided that Alien "B" had the same qualifications at the time the labor certification was filed on behalf of Alien "A...

DOL Reinvents Kellogg

Posted on December 18, 2007
The current trend of PERM audits is now focusing on alternate requirements both quantitatively and qualitatively. By quantitative, we means the number of months or years required by the Employer. As previously reported, the DOL has started to apply SVP as defined on the O*Net, issuing audits and denials for applications which state requirements more than the number of months or years permitted in the O*Net...

Attorney's Role: Lawyer or Scribe?

Posted on December 11, 2007
The issue of attorney fees (by now everyone knows that aliens cannot pay their employers' attorney fees for PERM) is a source of great confusion, because the role of the attorney has been turned upside down by the PERM Rule. Prior to the PERM rule, applications for labor certification required the signature of the employer and the alien...

Project "Perm Audits 2007"

Posted on December 03, 2007
In case you haven't been on this planet lately, Project Perm Audits 2007 has arrived. The blitz began with the recent closings of the Baclog Centers, apparently due to the availability of extra work force to review PERM applications. In 2005, DOL introduced a new standard of "Zero Tolerance" electronic review which lived up to the name PERM -- "Program Electronic Review Management"...

Whatever Happaned to Rak and Rak?

Posted on November 26, 2007
A colleague contacted me recently to inquire about a BALCA case that he was trying to find. The name of the case is Rak & Rak, Inc. There is a reference to it in another case, and the citation given is Rak and Rak, Inc., 1994-INA-269 (Jul. 26, 1995). My colleague insisted that the decision deals with the requirement of a high grade point average in a Labor Certification Caser...

How Not to Miss Audit & Appeal Deadlines!

Posted on November 12, 2007
I had the pleasure to speak recently with Nathan Waxman, a labor cert aficionado, who called my attention to some deficiencies in the PERM regulation regarding deadlines for responding to DOL findings. Nathan is a regular at Labor Cert seminars, conferences and workshops, and will also be a speaker at our November 30 workshop in NYC...

PERM Workshop in NYC on November 30, 2007

Posted on November 05, 2007
I'll be looking forward to the PERM Workshop in NYC on November 30th. It will be held at the Radisson Martinique On Broadway, 49 West 32nd Street. Included, as always, We've been holding them around the country to meet with practitioners from different regions...

Filing a New Case After Denial

Posted on November 05, 2007
I think that everyone knows how the basics work. Under the pre-PERM rules, you have to wait six months to file a new case after receiving a denial. Under the PERM rule, you can refile immediately? But what if you have a denial under the old rule, and you want to refile immediately under the PERM rule? Do you have to wait six months? The answer is that you can refile under the new rule immediately, notwithstanding the fact that the old rule is still in existence...

More About "Or Equivalency"

Posted on October 27, 2007
Please review the first posting on the same topic "or equivalency" before reading this posting. I wrote that for many years, practitioners have placed the words "or equiv" as an educational requirement in Labor Certifications, and that this brought about different reactions in DOL's State and Federal Offices due to the fact that the SWA?s and Regional offices followed a policy of acting independently and not following the policy of the Central Office of DOL...