perm, i love you just the way you are. for now. - 01...perm temperature process/regulatory changes...

PERM, I love you just the way you are. For

now.Melany Savitt, Tonkon Torp LLP, Portland

Eryne Walvekar, MacDonald Hoague & Bayless, Seattle

Introduction

PERM Temperature

Process/Regulatory Changes

Processing times (PWR/PERM)

Unemployment rate at an all time low

2019 NW Regional Immigration Law ConferenceBusiness Track Session 6: Advanced PERM and PERM-based I-140 issues

Melany Savitt & Eryne Walvekar

February 14-15, 2019 of 13

Introduction, cont’d

2018 Updates and BALCA

Preparation Guidelines

Prevailing Wage Guidance

Recruitment Guidelines

Form Completion

Audits/Denials

Preparation Guidelines

Batching

Ideal for streamlined job descriptions and requirements, high volume client

Challenge: each Beneficiary needs to meet the minimum requirements

Benefits: Saves costs and time for employer, employer can hire qualified applicant

Matter of Capgemini America, Inc. (Dec. 21, 2017) AILA Doc. No. 17122901

BALCA was fine with Sunday ads referencing multiple openings

Matter of CTS Technical Services, Inc. (Nov. 9, 2017) AILA Doc. No. 17112901

BALCA overturns CO denial – CO failed to consider evidence offered which demonstrated that the employer had multiple openings available.



February 14-15, 2019 of 13

Preparation Guidelines, cont’d Travel requirements

Where does this requirement go on ETA Form 9089

H.11.: At the end of the job description

H.14.: Special skills

H.1.: Address 2

Matter of Technology Consultants (October 27, 2017) AILA Doc. No. 17110841

BALCA overturns CO denial – employer did not include travel on PWR, Form 9089 indicated “various unanticipated locations” which means relocation, not travel; NPWC considered the same in issuing PWD

Telecommuters

Benefit when EE requests/Requirement when imposed by ER

PWR, Recruitment, & ETA-9089: ER’s headquarters, reporting office = primary worksite

May work from headquarters in City, State, or telecommute from any location in the United States

Telecommuting permitted/telecommuting acceptable

Note any restrictions to geographic area (NW, State, MSA?)

No need to list home address as primary worksite (especially since you cannot control or even know about when an employee moves)

Preparation Guidelines, cont’d

Roving Employees/Multiple Worksites/Relocation

Anticipated worksites

List primary worksite in H.1 and additional worksites in H.14

Unanticipated worksites (Farmer Memo (AILA Doc. No. 18060541)

Headquarters in primary worksite (H.1.) + Address 2, H.14., or H.11. job duties

“May work in various unanticipated locations in the region”

“Work assignments in various unanticipated locations throughout U.S.”

Traveling

Travel as part of the job (between company worksites)

Sample language:

25% international and domestic travel required

Travel to ER State locations one week per month to review established procedures with IT Teams.

ETA Form 9089 (Don’t forget to include in PWR and Recruitment)

Primary worksite in H.1., Address 2, H.11., Job description, H.14. Requirements



February 14-15, 2019 of 13


Tests

Does it go beyond minimum requirements; need clear parameters and business justification for the test

Must be validated to demonstrate usefulness (professor evaluation? Letter from similar company?)

Must state criteria for passing and prove alien took the test and passed

Must be supported by objective evidence that U.S. worker screened out by the test could not perform the core job duties

Special Skills/Requirements

Unquantified skills are still ok

50% shift cases

List % next to each duty K.a.9. Job 1, Job 2, etc.


I-140 considerations/RFE overlap

Must demonstrate ability to pay from priority date

Best Evidence

Annual report, federal tax return, audited financial statement, Form W-2, pay statements (when ER already paying wage)

Financial status letter (100+ employees)

Start-ups

Letters/articles confirming venture capital funding/angel investments

https://www.sec.gov/edgar/searchedgar/companysearch.html

Parent/Subsidiary

Parent annual report and highlight subsidiary information

Evidence when employee not earning prevailing wage

Consolidated financial statements

Net income or assets must exceed the difference between salary paid and prevailing wage



February 14-15, 2019 of 13


I-140 considerations/RFE overlap, cont’d

USCIS asking to see PWD and labor market test

Either provide, or push back and say no

If there’s an error in the SOC, attorney’s burden to correct

H-1B officer looking at PERM based I-140

Interplay between PERM and H-1B degree fields

Consistent SOC between H-1B and PERM

Prevailing Wage Guidance PWD processing times now approach four months; implication regarding PERM

strategies.

In December, 2018, DOL confirmed that PW processing time is an average of 115

days..

• Set client expectations appropriately for longer processing

• Impact when beneficiary is approaching FNIV – start recruitment before PWD is

issued?

• Consider date when PWD is likely to be issued and likely PWD validity based on

time of year.

• What is impact of PWD is unexpectedly high? (reposting notice, further delay

if requirements must be modified)



February 14-15, 2019 of 13

Prevailing Wage Guidance, cont’d AILA Doc. No. 18010230 – a treasure trove of more than 700 substantive pages

of internal trainings, Power Points, SOPs, and policy guidance for processingprevailing wage requests

Key topics for prevailing wages – we read the entire submission so you don’t need to!

• Use of Alternative Surveys

• Use of “All Other” codes

• Impact of Supervisory Duties on the wage level

• Impact of Travel on the wage level

• Guidance on selecting the best SOC

• Example: Software Developers Applications, Software Developers Systems, vs.

Computer Systems Analysts

Prevailing Wage Guidance, cont’d Alternate Surveys - AILA Doc. No. 18010230 (pgs. 838-852)

Traditionally, DOL would not provide a list of alternative surveys. But AILA Doc. No

18010230 contains a list of “most common” surveys!

• Surveys mentioned include Radford, Towers Watson, Dietrich, Mercer, and several

others

• DOL’s list Includes companies that produce individual prevailing wages analyses

based on published surveys. [E.g., APWD (https://apwd.info/)].

• Use of a survey on the list will not guarantee that DOL will accept it. The survey

itself may be acceptable but the match not appropriate.

• AILA Doc. No 18010230 also includes a handy checklist used by the PW analyst to

determine if a submitted survey is acceptable.



February 14-15, 2019 of 13

Prevailing Wage Guidance, cont’d “All Other” Codes – AILA Doc. No. 18010230 (pgs. 1161-63; 1164-1168)

DOL follows Matter of Meltwater News US1, Inc., 2014 PWD 0005 (BALCA July 16, 2014) and Matter of Quest Diagnostics, 2015 PWD 00002 (BALCA Feb. 12, 2015). When the employer’s job duties match the tasks from one of the breakout occupations of an “All Other” SOC code and cannot be reasonably classified elsewhere, use of an “All Other” SOC code is appropriate.

• Examples where DOL is likely to accept an “All Other” code because the job cannot

be reasonably classified elsewhere: Naturopathic Physicians, SOC 29-1199.04 within

Physicians, All Other

• When there is overlap in job duties between a specific occupation and a breakout

occupation, be prepared to show why the breakout occupation is more

appropriate. DOL is less likely to accept an “All Other” Code when there is overlap.

Prevailing Wage Guidance, cont’d Use of “All Other” Codes - AILA Doc. No. 18010230 - example of overlap in job

titles and duties



February 14-15, 2019 of 13

Prevailing Wage Guidance, cont’d Impact of Supervisory Duties on the Wage Level - AILA Doc. No. 18010230 (pp.1312-

1318)

Step 5 of DOL’s Prevailing Wage Determination Policy Guidance of 2009 provides that if there are any supervisory duties, the salary should be bumped up by a level unless supervisory duties are inherent to the occupation.

Questions:

• What if the employer says that the position does not supervise the work of other employees but the job description itself indicates there are direct reports? [the positon is deemed supervisory]

• What if the job description says that the duties include coordination, mentoring, directing the work of others but not “direct reports?” supervision? [position is likely to be deemed supervisory; wage bump is required for mentoring others if job is otherwise at level 1]

• How do you know if supervisory duties are inherent to the occupation? [positions in the 11-XXXX series, Management occupations, have supervisory duties inherent to the occupation.]

Prevailing Wage Guidance, cont’d Impact of Supervisory Duties on the Wage Level - AILA Doc. No. 18010230

(pp.1311-1318)

Questions, continued: what is the significance of supervising peers or subordinates?

• No wage bump is needed for supervision of subordinates if management duties are inherent to the occupation.

• But supervision of peers is not typical even for management positions. Employees supervising peers get a wage level bump even if they are managers.

• When the PWDR claims that the position supervises subordinates, DOL may issue a request for information (RFI) asking for the occupations of the supervised employees.

• Practice Tip: include the job titles of the employees supervised in the initial PWDR



February 14-15, 2019 of 13

Prevailing Wage Guidance, cont’d Impact of Travel on the Wage Level - AILA Doc. No. 18010230 (pp.7-13)

When travel is not normal to the occupation, DOL will add a wage level point. How do you know if travel is normal? The DOL training materials provide guidance on whether travel is normal to selected occupations!

Examples:

• Marketing Managers, SOC 11-2021 – 75% international travel is normal

• General and Operations Managers, SOC 11-1021, 75% international travel is normal

• Computer and Information Systems Managers, SOC 11-3021, 80% national travel is normal

• Financial Managers, 11-3031, 50% national travel is normal

Does DOL follow its own training? What are you seeing? (and where do these percentages come from, anyway?)

Recruitment Guidelines

Must the ads and NOF match the 9089? Current status of matchy-matchyrequirements:

The simple solution: No issues if the 9089, the newspaper ads, the SWA, the three recruitment steps, and the Notice of Filing all have the same job description and requirements.

To save money, employers like to shorten ads. This is acceptable so long as the ad provides reasonable notice of the job opportunity. The job requirements do not need to be included.

E.g., BALCA granted certification when the newspaper ad failed to include a foreign (Korean) language requirement. The ad contained no requirements.

• Matter of Unicolor, Inc. 2013-PER-00065 (Jan. 26, 2018) AILA Doc. No. 18021236

• BALCA overturned denial where recruitment did not mention a foreign language requirement, BALCA held that employers are not required to enumerate every job requirement in their ads



February 14-15, 2019 of 13

Recruitment Guidelines, cont’d

• When 9089 required applicant to have four of 49 listed skills, and the ad listed different skills and used conjunctive “and” rather than disjunctive “or”, certification denied. US workers could have been dissuaded and think all skills applied to all positions. Matter of Capgemini America, Inc. 2013-PER-01958 (Dec. 21, 2017), AILA Doc. No. 17122901.

• When 9089 job title was not in ad for multiple IT positions, and 9089 skills were not listed in the ad, certification denied. There was insufficient nexus between 9089 job and the ad. Matter of Igate Solutions, 2013-PER—2216 (August 30, 2018). AILA Doc. No. 18092535

• When 9089 had alternate requirements, but the ad only listed the primary requirements, certification denied. US workers couldn’t know they could qualify via the alternate requirements and would have been dissuaded from applying. Matter of Capgemini America Inc. 2012-PER-02538 (April 12, 2018); Matter of HS Solutions, 2013-PER-02573 (April 12, 2018). Both cases published at AILA Doc. No. 18062232.

Recruitment Guidelines, cont’d Evidentiary Requirements for an Employee Referral Program

• The ERP must offer incentives• The ERP must have been in existence during the recruitment period• The Employees must have been on notice of the PERM job opportunity

These requirements were satisfied by an affidavit from the Director of Recruiting Operations in Matter of Gap, 2017-PER-00108 (April 20, 2018) Certification was granted. The job had been posted on the employer’s internal website.

But certification was denied when the audit record did not contain documentation that the ERP was in existence during the recruitment period, that the employees knew of the PERM job, and that the ERP applied to the PERM job. Matter of Capgemini America, Inc. (yet another Capgemini case), 2012-PER-02312 (Dec. 21, 2017) AILA Doc. No. 17112900.



February 14-15, 2019 of 13

Recruitment Guidelines, cont’dEmployers must be careful when rejecting applicants without interview

• Matter of Amneal Pharmaceutical of NY 2017-PER-00191 (October 26, 2018)(no separate AILA Doc. No.) Certification denied when employer failed to interview an applicant who met the 9089 requirements. Evidence of a rejection after interview for a prior job was not timely submitted and was based on unstated job requirements.

• Matter of Kaplan, Inc. 2014-PER-01637 (Apr. 20, 2018) Employer rejected applicants who did not meet primary academic requirements (Mater’s plus 1 yr.). Employer did not interview to see if undefined Bachelor’s degree and years of experience met the alternate requirements (Bachelor’s plus 5 yrs.). Employer had a duty to inquire further. BALCA affirmed CO denial holding that employer may not reject an applicant who does not meet primary requirement if there is a reasonable possibility that applicant meets alternative requirement.

• Matter of Intel Corp. 2017-PER-00107 (June 27, 2018) Employer rejected applicant who met academic requirement but did not have SQL in resume. BALCA affirmed CO denial and held that since applicant had MSCS plus 6 of the 7 required skills, reasonable possibility that applicant had 7th skill (SQL) and likely could be trained in a reasonable period of time of on-the-job training.

• Matter of Salesforce.com 2017-PER-00116 (April 20, 2018) Employer rejected applicant who met general academic and experience requirements (MSCS+1 yr.), but did not list xPath (programming language) on resume. BALCA affirmed CO denial holding that the employer had a duty to interview the applicant to investigate further to see if applicant had this skill and could be training. BALCA noted that xPath appeared to be obtainable via short online course.

• Matter of Marlabs, Inc., 2013-PER-01125 (Nov. 9, 2017) AILA Doc. No. 17112842. Certification granted when employer rejected applicant with no IT experience whatsoever without interview. Job was an IT position with alt requirements and Kellogg language, but applicant lacked degree and had no IT experience.

• Matter of Sunnyvale School District 2014-PER-00620 (June 22, 2017), AILA Doc. No. 17070333. Certification granted after supervised recruitment. Employer sent certified letter to applicant but did not call or email. However, applicant lacked teaching certificate and employer had no duty to interview.

Recruitment Guidelines, cont’d Layoffs

If there has been a layoff by the employer in the area of intended employment within 6 months of filing the PERM Application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.

A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.

Matter of America Express Travel Related Services (June 22, 2018) AILA Doc. No. 18072607

BALCA affirmed CO’s denial because providing information to laid-off workers on open positions generally did not satisfy the notify/consider requirement. Employers must notify these workers of job opportunities of a labor certification is sought.



February 14-15, 2019 of 13

Form Completion

Matter of PS Restoration Systems (Jan. 26, 2018) AILA Doc. No. 18021232

BALCA overturns denial where Form 9089 listed employee’s experience by Month/Year rather than Month/Day/Year. Neither the form, nor the instructions require a specific format and sufficient detail provided to show employee met minimum requirements.

Matter of USC Operating Company (Nov. 8, 2017) AILA Doc. No. 17112840

BALCA overturns denial – CO provided no evidence to show that information missing from Form 9089 (preparer’s title) was material to the review; missing information could be located elsewhere.

Audits/DenialsFY 2018 DOL Statistics AILA Doc. No. 18101932



February 14-15, 2019 of 13

Audits/Denials, cont’d Encouraged to upload documents rather than paper filing

Audit triggers (AILA Doc. No. 18071030)

QUESTIONS &

ANSWERS



February 14-15, 2019 of 13

perm, i love you just the way you are. for now. - 01...perm temperature process/regulatory changes...

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