Immigration Law

PERM for Experts: ILW Teleconference on November 25

Posted on November 23, 2009
On Wednesday, November 25, 2009, we will have an important teleconference on PERM. The teleconference takes place at 2:00 p.m. Eastern time. This will be the second of our current three-part teleconference series on "PERM for Experts." We'll be covering all aspects of notice requirements, recruitment, and consideration of US workers...

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...

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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...

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)...

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