Immigration Law

PERM in the "No Vacation Nation!"

Posted on July 12, 2010
I saw an article on a TV news journal called "No Vacation Nation!" They compared the culture of vacation in various countries. The US has among the lowest vacation times in the world. According to the journal, we're a bunch of workaholics. That's what makes the U...

PERM at the AILA Conference in Washington

Posted on July 06, 2010
Just a quick note. I returned from the AILA Conference in DC where I met with many colleagues and friends. I would like to say that the quality of the presentations was very good. I attended the PERM conferences and saw many rising stars as well as long-standing icons in the labor certification field...

PERM & I-140 Preference Petitions

Posted on June 21, 2010
It is good to be reminded that PERM is only used for 2nd and 3rd preference I-140 petitions, and not for 1st, 4th or 5th preference. A problem I have seen more than once is that the preparer (attorney, paralegal, secretary or other) checks the wrong box on the I-140 Form...

PERM Planning at the AILA National Conference

Posted on June 14, 2010
The AILA Conference for 2010 features all you need to know about PERM, and if any questions are unanswered, I will be available during the entire conference, from Wednesday through Saturday, to meet with my friends, colleagues and Blog readers either to meet casually or by appointment...

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PERM: Fast Forward to Fowler White Boggs, PA

Posted on June 07, 2010
I am pleased to announce that I have joined the Immigration Practice Group of Fowler White Boggs, PA, a statewide firm in Florida, with offices in Tampa, Jacksonville, Tallahassee, Fort Meyers and Fort Lauderdale. Founded in 1943, the firm maintains its main office in Tampa...

PERM: Where Have all the O*Nets Gone?

Posted on June 07, 2010
It's no secret that O*Net is a constantly changing database, with new interpretations appearing almost every day of the week! Those of you who research occupations on the O*Net for PERM applications have probably noticed that the Job Zone Levels, title, descriptions, and even the occupations themselves are subject to sudden and unannounced changes...

PERM Approval: Anatomy of a Failed Case

Posted on May 30, 2010
I was asked to review a file this weekend. The application was made for a specialty cook, and the PERM application was approved. The problem arose when the I-140 was filed. As most attorneys know, a PERM approval is not worth anything, unless the I-140 Petition can be approved by USCIS...

PERM: The Kanter Conundrum

Posted on May 23, 2010
Many thanks to Ann Kantor, a colleague from Sacramento, California, for sharing an interesting Prevailing Wage issue with us. In California, the State Workfoce Agency issued a Prevailing Wage Determination for only 90 days. The Employer relied on the Prevailing Wage Determination however, the wage was in error, because it did not correspond to the on-line wage...

PERM "Wage Offer" to Whom?

Posted on May 17, 2010
There is a question on the PERM Form that inquires "Wage Offer". The question, located in Part G on Form 9089, is different from another question, "Wage Range." There is also a third question, "Prevailing Wage," which may be neither of the above. Because of the ambiguity in these questions on the PERM Form 9089, Employers are receiving PERM denials! The PERM process also requires the Employer to file a 30-day job order in the State where the job offer is located...

Bachelor's Equivalency: H-1b Standard vs. PERM!

Posted on May 10, 2010
An Employer recently lamented a PERM Denial. The Employer offered a position of Operations Manger with requirement of a Bachelor's Degree plus two years experience OR 12 years experience (in lieu of a Bachelor's Degree) plus two years experience in a PERM application...

Unauthorized or Unpaid Employment for PERM!

Posted on May 03, 2010
I received a two-part question regarding alien qualifications fora PERM and employment based immigrant visa petitions: 1. Can unpaid employment "count" for experience for a labor certification application? Aliens and U.S. workers can qualify for a job by any combination of work, experience and training...

PERM: Prevailing Wage Validity Was Valid for Only 90 Days!

Posted on April 26, 2010
I received a question about the prevailing wage Validity Period for PERM: The attorney recently received a PERM case denied because the adjudicator stated that, according to Section 656.40(c) "to use a SWA prevailing wage determination, employers must begin recruitment or file their application within the validity period specified by the SWA...

Motion to Reconsider: PERM

Posted on April 19, 2010
Here is an example of a Motion to Reconsider that may be used if the PERM Form 9089 has the wrong dates for recruitment. This Motion is in accordance with recent DOL Guidelines that authorize reconsideration in some types of cases. "A decision (Denial) states that the Employer failed to place newspaper ads on Sunday and that the ads were placed on two Fridays, instead of on two Sundays The decision is based on the information placed on the PERM Form regarding the dates of publication...

The PERM and Exceptional Ability Quandry: A Solution?

Posted on April 12, 2010
In previous weeks we discussed the possibility of filing 2nd preference exceptional ability petitions for third preference cases containing minimum requirements in accordance with DOL standards. We noted that the DHS rule states, (ii) To show that the alien is an alien of exceptional ability in the sciences, arts, or business, the petition must be accompanied by at least three of the following: (A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability; (B) Evidence in...

More about bumping up to 2nd Preference with PERM!

Posted on March 29, 2010
Last week I stirred up quite a hornet's nest with a Blog about third preference skilled workers who can "bump" up to second preference. There is definitely a lot of interest in this subject, due to the current backlog of 3rd preference -- almost seven years -- and the current availability (no backlog) of 2nd preference visas for most countries...

Bump Yourself Up to 2nd Preference with PERM!

Posted on March 22, 2010
Many people are currently in the unfortunate situation of waiting for permanent residence on the third preference with a backlog of many years and no way to bring their cases to a happy conclusion. They are not thoughtt to be qualified for the faster 2nd preference because they do not have an advanced degree, which is defined as a Masters degree or a Bachelors plus five years progressive experience...

Revocation of PERM and/or I-140

Posted on March 15, 2010
A PERM case can be revoked for almost any reason. Most people think that it should be revoked only for fraud, while this was true for labor certifications filed before PERM (March 28, 2005), under the PERM Rule, an approved labor certification can be revoked for a simple error...

Is Your PERM Case Ready to File an Immigrant Visa Petition?

Posted on March 08, 2010
PERM cases, approved by the U.S. Department of Labor, are the first step in the process to become a U.S. Resident. The procedure requires the Employer to file an application for PERM, and then an I-140 Immigrant Visa Petition with the U.S.C.I.S. (Department of Homeland Security)...

Motions to Reconsideration and Appeals Under the PERM Rule

Posted on February 28, 2010
The original PERM rule in 2005 stated that if an application is denied, the employer may file a Motion to Reconsideration (MTR). Interestingly, the Employer could not include any evidence that was not previously submitted to DOLE. This means that the Employer could not provide new and pertinent rebuttal information, as is common in most administrative legal processes...

PERM Prevailing Wage: Is It Working?

Posted on February 15, 2010
We previously wrote about the fact that the federal government would take over the prevailing wage function of PERM. The change would remove this function from the state governments. According to the PERM Rule of 2005, the states continued to participate in PERM processing in two ways: (1) Prevailing Wage Determinations and (2) Placement of 30-day Job Orders in the State job service offices...

Does PERM Have a National Origin Bias?

Posted on February 07, 2010
I first got the idea of possible bias in Labor Certification processing when I noticed years ago that many of the NOFs (Notices of Findings) and Denials of labor certification applications were issued to Employers and Aliens with certain kinds of national origin...

Changes of Address or Representation on PERM Form 9089

Posted on January 31, 2010
Many people are still confused about the way to make changes of address, name or attorney representation on a PERM application. The DOL has tried to clarify this in its Frequently Asked Questions. However, before explaining the FAQ's, we should remember that in essence, a PERM form cannot be changed after filing...

BALCA Holds PERM Errors Not Material

Posted on January 24, 2010
Just when we thought we understood that errors are not permitted in PERM applications -- that the forms must be completed 100% with all the i's dotted and the t's crossed, to the point of zero tolerance, and just when we thought that motions to reconsider may include new evidence in the nature of motions to reopen, BALCA has opened the door once again to a more liberal interpretation of non-material errors on Form 9089...

PERM Process: Copies of Ads are OK!

Posted on January 17, 2010
In the pre-PERM law (until March 28, 2005), the Department of Labor's regulations were very specific about photocopies of ads. No photocopies were accepted. Only originals tear sheets! Employers used to scramble around to find original ads to provide to DOL...

File I-140 within 180 Days After PERM Approval

Posted on January 10, 2010
The PERM regulation requires that an I-140 petition for an approved PERM case be filed within 180 days after approval of the labor certification. The 180 days can pass very quickly, and many unwary employers and/or attorneys find themselves with little time to file the petition and even miss the deadline...

Who Can File a PERM Case?

Posted on January 03, 2010
Almost anyone Employer can file a PERM case. According, to Federal regulations the Employer can be a corporation, partnership (including joint venture) or sole proprietorship, and can also be either a US entity or foreign, except that foreign entities need to have a location in the US where workers can be referred for interview, plus a FEIN (Federal Employment Identification Number)...

PERM: Revocation Based on Family Relationship

Posted on December 21, 2009
This week I decided to feature part of a legal brief regarding the question of family relationships in labor certification processing. Mr. Robert Banta wrote an article for the PERM Book II which fully explores the parameters of alien ownership and control in labor certification processing...

Unraveling Restrictive Requirements in PERM Cases

Posted on December 14, 2009
At our next telephonic conference, on December 16th, we will be discussing restrictive requirements, among other topics. I promised Nathan Waxman, our speaker on this subject, to present some questions for his consideration. Here are the questions: Job requirements normally required for the occupation...

Special PERM Problems Are Subject of December 15 Teleconference

Posted on December 06, 2009
On December 16, we will have the third and last teleconference in our series, "PERM for Experts." As in the first two conferences, we have an all-star cast, and I guarantee a lively and provocative discussion. For PERM lovers, it doesn't get any better than this! First, we'll take a fresh look at restrictive requirements...

The PERM Story: A Statute Gone Awry

Posted on November 30, 2009
As the editor of ILW.COM and others have pointed out, if a PERM case is bogged down, lost in the system, taking an inordinate amount of time to be decided, a mandamus action is possible. The authors of this point of view urge that the basic PERM process is defective, because the regulations have improperly shifted the burden of production of evidence from DOL to the Employer...

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