Immigration Law

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...

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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...

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