Immigration Law

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...

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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...

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