Immigration Law

PERM: Foreign Language Undefined

Posted on March 28, 2011
The question of a foreign language requirement proposed an existential question to an Attorney who consulted with me recently. The 9089 stated "Yes" to the question, "H-13" which asks, "Is knowledge of a foreign language required to perform the job duties?" The questions continues, "If the answer to this question is 'Yes,' the employer must be prepared to provide documentation demonstrating that the language requirements are supported by business necessity...

BALCA: Elevating Form Over Substance

Posted on March 21, 2011
In a recent case, the Board of Alien Labor Certification Appeals considered issues of form vs. substance, applying the concept of Fundamental Fairness (aka Due Process) to some highly technical issues. The case, "Steve's Bakery and Cuchirfrito Corp, 2010-PER-844, was decided on March 9, 2011...

PERM: Supervised Recruitment Gone Awry!

Posted on March 14, 2011
Supervised recruitment authorizes the Certifying Officer to require Employers to make an additional search for US workers in the job market. To review previous and existing law on the subject, prior to the PERM Rule, which began on March 28, 2005, Employers were required to advertise three consecutive days in a newspaper of general circulation and 30 days in the job bank of the state workforce agency...

PERM: Business Necessity Revisited

Posted on March 07, 2011
William Stock, Esq., participated in a panel at the mid-winter AILA Conference which took place in Miami on February 17 and 18. Bill chaired a panel on PERM Updates, but I wish to focus on the article he presented in the Conference Materials regarding Business Necessity...

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PERM: What are equivalent, alternate requirements?

Posted on February 28, 2011
I was listening to a tape from the DOL presentation to the national AILA Conference from 2010, and I began to sympathize with the difficulty the certifying officer may experience to make certain kinds of findings. For example, on the issue of identifying the equivalence of a Bachelor's Degree, the speaker stated that DOL has received PERM applications with a wide gamut of equivalencies...

PERM as alternative for EB-5?

Posted on February 21, 2011
A frenzy of excitement regarding investor visas like EB-5 (a/k/a employment creation visas) has been gripping the nation. EB-5 "green cards" are available to investors who may invest between $500,000.00 to $1,000,000.00 and create 10 jobs or more for US Workers...

PERM Approval Unsigned by Alien in Rural Kosovo!

Posted on February 14, 2011
In a recent BALCA case, the application was denied because the application was filed by mail, and the alien had not signed the application. On appeal, the Employer argued that the application was not signed, because the alien was located in Kosovo, in a place where communications are difficult and mail delivery is uncertain...

PERM: Documenting 245-i Eligibility

Posted on February 07, 2011
The start date for the PERM law is March 28, 2005. Prior to this date, an earlier version of the law was used to process alien labor certification. In particular, the older rule provided a process for investigation of fraud or misrepresentation by the Department of Labor...

PERM: Wage Offered V. Wage Paid

Posted on January 31, 2011
I received an interesting question regarding the terms "Wage offered" v. "Wage Paid." The question was how to interpret the "wage offered" to the employee at the time the 9089 is filed as being equivalent to the "wage paid" at the time of filing. Granted that these are terms of art, we need only look to the definition of these terms as applied in the processing of PERM cases, and not in other types of DOL applications such as Labor Condition Attestations for H-1B visas...

PERM: How to Find a Qualified Emloyer

Posted on January 24, 2011
Most people thing that the most important thing in a PERM case is an alien with unusual or exceptional abilities. However, aliens with very unusual abilities do not require a PERM case. They can apply as extraordinary aliens, outstanding researches, exceptional abilities, or persons who will work in the national interest...

PERM: NOF May Not Be Taken Lightly!

Posted on January 09, 2011
The "NOF" is the Notice of Filing. Years ago we called it the "Notice of Posting". Under PERM, the NOF must have all the information contained in the PERM Form 9089 regarding the job offer and it must be posted for 10 business days. (See our recent Blog describing "business days" as opposed to non-business days)...

PERM: FAQ Clarifies 10 Days Posting Requirement

Posted on January 01, 2011
On December 21, 2010, the DOL posted a new FAQ to clarify how to count the 10 consecutive business days for posting a Notice of Filing in connection with a PERM case. By way of background, the 10-day posting confusion is an old one. Back in the days of pre-PERM, the local State Workforce Agencies strictly enforced an interpretation of the rule, so as to prohibit Employers whose businesses were open on weekends and holidays to include those days as valid posting...

PERM: Outsourcing by State Workforce Agencies

Posted on December 27, 2010
An Employer reported denial of certification because, although it provided a copy of the State Job Order Form, there was no corresponding proof of publication from the State Workforce Agency (SWA). The misunderstanding may have stemmed from the fact that the regulations require that the Employer place the 30-day ad directly with the State Workforce Agency, i...

PERM Opinions Vary Greatly!

Posted on December 20, 2010
Employers wishing to file an application for alien labor certification (a PERM process) may always consider obtaining more than one opinion about legal issues. There are so many unresolved questions of law involved in immigration cases, that different minds can easily reach different conclusions...

PERM: Employee Referral Program

Posted on December 13, 2010
This week an attorney called with a question about the Employee Referral Program. This type of recruitment may be used for positions designated as "Professional," when three out of ten options may be used for recruitment. Although some PERM applications have been denied, because the Employer did not state the incentive in the Notice of Employee Referral Program, the case that came to my attention was different, because the Employer was concerned with the fact that the Program may have overlapped into the last 30 days of the 180 day recruitment period...

PERM: Sheepherder Gone Astray!

Posted on December 04, 2010
Every immigration lawyer would like to work with a sheepherder, but most do not get the chance! Recently I was asked to assist a matter involving a real, honest-to-goodness sheepherder. Sheepherders in the US traditionally came from Spain, from the Basque country, but the one that came to my attention was from Peru, also a mountainous, scruffy terrain...

PERM: Sheepherder Gone Astray!

Posted on December 04, 2010
Every immigration lawyer would like to work with a sheepherder, but most do not get the chance! Recently I was asked to assist a matter involving a real, honest-to-goodness sheepherder. Sheepherders in the US traditionally came from Spain, from the Basque country, but the one that came to my attention was from Peru, also a mountainous, scruffy terrain...

Obtaining Master's Degree for PERM

Posted on November 15, 2010
Recently an Employer provided the case history of a denial based on the fact that the alien obtained a Master's Degree while working for the Employer. The alien who had only a Bachelor's Degree, had been hired to work in the IT field with an H-1B visa...

PERM Question J-11 and Alternative Requirements

Posted on November 08, 2010
An attorney referred a question that has been puzzling many of the experts. The problem is this: An Employer filed a PERM application electronically for a Market Research Analyst. The primary Requirements on Form 9089 were a Master?s degree in H-4 and no experience in H-6...

PERM For Experts: Post Filing Issues

Posted on November 01, 2010
The last in our current series of PERM Telephonic Seminars is on Post Filing Issues. The topics are divided into the following: Audits and Denials: Void for Vagueness Challenging audit: does the selection process meet due process How to fix defective documents in response to audit Documenting business necessity Flawed documentation in audit file Obligation of Certifying Office to provide clear basis for denial Post-denial: file a motion to reconsider or request for review The Record File: A Tool for Rebuttal and Reconsideration Review to decide on motion or request for review Supplementing record file during rebuttal or by motion...

Is PERM Experience, Education, and Training : Conjunctive or Disjunctive?

Posted on October 22, 2010
Last week an employer wrote that he received a denial, because he did not know the best way to fill out the PERM 9089 form, when its requirements for the position were described in the disjunctive (2 years experience, education or training) and not in the conjunctive (2 years experience, education and training)...

PERM Seminar October 14 to Focus on Recruitment Issues

Posted on October 11, 2010
I am looking forward to the October 14 ILW Telephonic Seminar, featuring Edwin R. Rubin, Jefrey A. Devore, and Jennifer G. Roeper. Since this is a panel on PERM for Experts, the team will focus on some complex and cutting edge issues. Experience during the last five years with PERM has shown that a delicate balance exists between the benefits of electronic processing, program integrity, and changing concepts of DOL policy...

PERM Notice Must Be Posted at Workplace

Posted on October 04, 2010
The PERM "Notice of Filing" is a posting of the job opportunity, usually on the wall where it is highly visible, for 10 business days. The "Notice" is not intended to be a form of recruitment, but a statement to the other workers that the Employer has a job opportunity available and that a foreign worker may be placed in the position...

PERM Approval Not Signed!

Posted on September 26, 2010
An attorney contacted me regarding an I-140 Immigrant Visa Petition filed with the USCIS Service Center. The attorney had attached all the usual documents required for a petition but had forgotten to obtain signatures of the Employer and Alien on the approved PERM Form 9089...

Banta on PERM

Posted on September 19, 2010
Robert Banta, a long time friend of labor certification and PERM, will host the first of three PERM sessions on ILW.COM on September 30, 2010. Robert is the Managing Partner of Banta Immigration Law Limited, Atlanta's largest law firm practicing exclusively business immigration law...

How Long Does a PERM Case Take?

Posted on August 30, 2010
PERM cases are actually applications for labor certification. The PERM Rule has only been used since 2005, when the it became effective, to describe applications for labor certification filed or after March 28, 2005. Applications filed before that date (some of which may still be pending) are not subject to the PERM Rule...

The Unbelievable Lightness of PERM

Posted on August 22, 2010
I was listening to the AILA Conference tapes (June 2010) in my car, and came across a session on I-864 Affidavits of Support. The speaker stated that the I-864 Affidavit of Support is just about the most troublesome form in all of Immigration-land, along with the Perm Form 9089...

Roving Employees & PERM

Posted on August 15, 2010
I would like to advise that it is an unsettled area of law, but the best way to understand it is to look at the pre-PERM roving employee rule and then looking at the PERM rule to see how the issue is treated. In pre-PERM, the emphasis was on the place where the labor certification was filed...

PERM Rule Promotes Unlicensed Practice of Law

Posted on July 25, 2010
This week I met with a client who related yet another tragic PERM story. The client had applied through PERM some years ago, but the Employer went out of business during the economic turn-down, and, although the PERM application was approved, the I-140 petition could not be filed due to insufficient funds available to pay the salary to the alien...

PERM Prevailing Wage Question

Posted on July 18, 2010
I went to the AILA Conference in DC with numerous questions on my mind, and came back with many useful answers, but one question persisted: How to prepare a prevailing wage request for a job offer with alternate requirements on a form that only allows one set of requirements for the occupation? The prevailing wage determination could vary, depending if a position like Market Research Analyst would have as its requirement ?Master?s Degree? or ?Bachelor?s plus Five?...

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