AVOIDING PERM MINEFIELDS
Robin Dana O’Donoghue
Bennett Savitz
David Ware
Issues Settled at the 12/12/2013
AILA DOL Liaison Meeting
(
:
• “Engineering Degree” Requirement
• Submitting Job Orders
• Elimination of Business Necessity boilerplate
language from Audit Template
Related Resources – See AILA DOL Liaison
Committee’s 2012 Research Tools Advisory
(AILA Doc. No. 12121342):
Resources on AILA InfoNet:
Board of Alien Labor Certification Appeals (BALCA) Cases & Decisions:
http://www.aila.org/content/default.aspx?docid=9511
BALCA Decisions dating back to 1993
DOL Cases & Decisions, Other than BALCA:
http://www.aila.org/content/default.aspx?docid=11197
Decisions dating back to 2002
DOL Agency & Liaison Information:
http://www.aila.org/content/default.aspx?docid=6732
Regulations, Agency Guidance & News, Liaison Activity, State Job Order Processes
DOL Resource:
Office of Administrative Law Judges Immigration Collection:
http://www.oalj.dol.gov/libina.htm
The DOL’s collection of statutes, regulations, reference materials, and case decisions
Travel with fixed worksite
Masterex Tech., 2011-PER-02086 (July 30, 2013)
KPMG, 2011-PER-02673, -02695 (January 23, 2013)
Roving (current undetermined worksites)
Software Prof Serv, 2011-PER-02299 (Sept 10,
2013)
Keane, 2010-PER-00749 (May 24, 2011)
Estisbew Tech Group, 2010-PER-01266 (Feb 21,
2012)
Future transfers (to determined or
undetermined sites)
Vedicsoft Solutions, 2010-PER-01251 (Feb 23,
2012)
Oxford Systems, 1997-INA-0387 (June 23, 1999)
Telecommuting
JDA Software, 2011-PER-02661 (Sept 27, 2012)
Topics of Discussion
Increase in wage level?
Place of advertisement?
Place of posting?
Verbiage in ads, posting?
Transfers: If indicated in PERM, does this protect
PERM for I-140/AOS purposes if Ben transferred?
20 CFR 656.17(h)(4)(ii) states:
If the beneficiary already is employed by the
employer AND does not meet the primary
job requirements and only potentially
qualifies for the job by virtue of the
employer’s alternative requirements,
Then, certification will be denied unless the
application states that any suitable
combination of education, training, or
experience is acceptable.
Applicant Evaluation and
Contact Issues
Related BALCA Cases:
• JP Morgan Chase, 2011-PER-00635 (Mar. 27, 2012)
• W. Alex Choi, CPA, PC, 2011-PER-02916 (Sep. 26,
2013)
• Twins, Inc., d/b/a Twins Hardware Floors, 2012-PER00392 (Nov. 1, 2013)
Applicant Evaluation and Contact Issues
Topics of Discussion:
•
How may an employer determine whether an applicant is a U.S. worker?
•
When is an employer allowed to reject an applicant based solely on the
resume?
•
If the requirements are not unduly restrictive, may an employer reject an
applicant if the resume shows clearly that the applicant does not meet the
minimum requirements without further inquiry?
•
When should the employer be instructed to inquire further into the
qualifications of the applicant?
•
What if the requirements are such that the applicant may be able to be trained
during a reasonable period of time?
•
How should employers contact applicants?
•
What should an employer do if it is unable to confirm whether attempts to
contact applicants were successful?
American Showa, 2011-PER-02402 (Jan 24,
2014)
My Plumber, 2011-PER-02712 (July 3, 2013)
South Island Pub Serv Dist, 2011-PER-01509
(Sept 19, 2012)
Topics of Discussion
What is DOL’s current “position” on Section K?
What is the current Section K “trend”?
What is the intent of the language at the beginning
of Section K?
What should be included in Section K?
If a qualification does not fit chronologically or
within employment history, where should it go?
Is AILA Liaison working on Section K issues?