AILA TX/NM/OK Chapter
Spring Conference
PERM Labor Certification:
Best Practices & Hot Topics
April 23rd-25th, 2015
Sante Fe, New Mexico
Jeffrey M. Zimskind
Stevens & Lee
Bethlehem, PA
Rebecca R. Massiatte
JMO Firm, PLLC
Dallas, TX
Best Practice #1:
Start At The Beginning
 Notice of Filing: Contains All of The Critical Info
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Employer’s Name
Location of Employment
Job Title
Job Duties
Start At The Beginning (cont.)
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Educational Requirements
Experience Requirements
Special Requirements
Salary (range)
Employer Contact Information
In-House Media
Best Practice #2:
Get the Employer’s Name Right
 SHOULDN’T be a difficult issue…
 Best to double-check and verify
 Does identity of PERM employer influence
whether experience gained with an affiliate can
be used?
 FEIN Verification Issues
 Consider whether an employer’s name/FEIN can
be used to your advantage
Best Practice #3:
Get Travel Right
 Fixed?
 Travel?
 How to describe?
 Interplay with prevailing wage level?
 Looking towards the future…
Travel (cont.)
 Articulating Weird Travel Situations
1. LOCATION OF EMPLOYMENT: Chicago, Illinois
office or at the employee’s option can be home office
based within 500 miles of Chicago. For home office
based employees, approximately two consecutive
weeks each month must be spent working from the
Chicago office, and occasionally additional travel on
short notice to Chicago for meetings, etc., will be
necessary.
Travel (cont.)
2. LOCATION OF EMPLOYMENT: Chicago, Illinois
HQ or home based in continental U.S. Occasionally,
short term training- or project-related travel may
be required.
3. LOCATION OF EMPLOYMENT: Princeton, New
Jersey, or can be home based within 125 miles of
Manhattan.
Travel (cont.)
4. LOCATION OF EMPLOYMENT: Princeton, New Jersey (can
be home office based in continental U.S. for up to one year)
5. LOCATION OF EMPLOYMENT: Dallas, Texas with long-term
assignments (typically 1-2 years) to project locations in
continental U.S.
 And then probably best to add to Special Requirements:
Must be able to relocate as necessary for long-term
assignments (typically 1-2 years) to project locations in
continental U.S., or be willing to commute at own expense.
Best Practice #4:
Job Title Flexibility
 Descriptive versus formal
 Lead Application Developer vs. Developer/Analyst III
 Business Immigration Attorney vs. Jr. Associate
 Quality Control Manager vs. Association Quality Control
Manager II
 Look down the road as far as possible
 Make sure the Job Title is flexible enough that it will
still make sense when the employee files Form I-485,
perhaps following a promotion or two
 Less of a concern with non-China/India EB-2s
Best Practice #5:
Job Duties- Yes, Yes & Yes
 Ask these questions:
 Are the duties correctly worded?
 Are any of the duties listed not essential, or are they, as
correctly worded, likely to change in the next year, or
two, or three?
 Are any truly essential duties missing?
 Do not over-include (e.g. pulls black chair out, rotates
chair, sits in chair, smiles, turns on computer, smiles
again, enters password, opens Outlook, deletes spam
email, then schedules lunch)
Best Practice #6:
Review Educational Requirements
 What is the employer’s actual minimum
educational requirement?
 What is “normal” per O*NET?
 What is “normal” on Planet Earth?
Educational Requirements (cont.)
 Consistency Concerns
 What is required elsewhere, such as H-1B, prior
PERM(s)?
 Is there a danger of NOT requiring at least a
Bachelor’s degree if the job is the same as the job
the FN holds in H-1B status?
 What about Bachelor’s degree plus two years of
experience, or, in the alternative, 14 years of
experience? Won’t work. Matter of Globalnet
Management L.C., 209-PER-00110 (Aug 6, 2009) (AILA
Doc No. 09101930). Matter of Microsoft Corp., 2011PER-02563 (Oct 16, 2012) (AILA Doc No. 12102260).
Educational Requirements (cont.)
 Can the educational requirement be justified by
business necessity? Meaning, is manager willing to
sign a declaration under oath explaining in detail
why the educational requirement "bears a
reasonable relationship to the occupation in the
context of the employer's business and is essential
to perform the job in a reasonable manner"?
 Does the FN meet the educational requirement?
Educational Requirements (cont.)
 Did the FN meet the educational requirement
before s/he began working for the employer?
 Or, if the FN satisfied the requirement after s/he
began working for the employer, was it during
a time when s/he was working for the employer
in a job not substantially comparable to the
PERM job?
Educational Requirements (cont.)
 20 CFR § 656.17(i)(3) - in
determining whether the
beneficiary meets the minimum
requirements, "DOL will review the
TRAINING AND EXPERIENCE
possessed by the alien beneficiary
at the time of hiring by the
employer" and that "the employer
cannot require domestic worker
applicants to possess TRAINING
AND/OR EXPERIENCE beyond
what the alien possessed at the time
of hire unless the alien gained the
EXPERIENCE while working for the
employer . . . in a position not
substantially comparable to the
position for which certification is
being sought."
 Matter of Maxim Integrated
Products, Inc., 2011-PER02310 (Jan 6, 2014) (AILA
Doc No. 14011047) ("The
Department of Labor cannot
take into account
QUALIFICATIONS
obtained while working for
that employer.")
Educational Requirements (cont.)
 Are there two (or more) combinations of
education and experience? E.g., Master’s degree
plus 3 years of experience OR Bachelor’s degree
plus 5 years of experience? If so, all things being
equal, which is the preferred combination?
 More discussion on alternative combinations
below.
Best Practice #7:
Review Experience Requirements
 What is the employer’s actual minimum experience
requirement?
 What is normal per O*NET?
 What is normal on Planet Earth?
 Consistent with what has been stated elsewhere? E.g.,
prior PERM applications.
Experience Requirements (cont.)
 Can the experience requirement be justified by
business necessity? Meaning, is manager willing to
sign a declaration under oath explaining in detail
why the experience requirement "bears a
reasonable relationship to the occupation in the
context of the employer's business and is essential
to perform the job in a reasonable manner"?
 Does the FN meet the experience requirement?
Experience Requirements (cont.)
 If so, did s/he meet it when s/he began working
for the employer?
 Or, if the FN satisfied the requirement by virtue
of experience with the employer, was it in a job
not substantially comparable to the PERM job?
 If so…go to Best Practice #8
Best Practice #8:
Dissimilarity/Comparison Chart
 Have employer prepare a grid listing all duties of
the prior job and all duties of the PERM job, with
number of hours each week or months spent on
each duty. Is there less than 50% overlap in terms
of time spent? Much better if it’s 45% or 40% or
less.
Dissimilarity/Comparison Chart
Prior Job
 Software Engineer
PERM Job
 Sr. Software Engineer
Experience Requirements (cont.)
 Are there two (or more) combinations of education
and experience? E.g., Master’s degree plus 3 years of
experience OR Bachelor’s degree plus 5 years of
experience? If so, all things being equal, which is the
preferred combination?
 For most JobZone 4 occupations, Master’s + 3 will
yield a Level 3 wage.
 WHEREAS - for most JobZone 4 occupations,
Bachelor’s + 5 will yield a Level 4 wage.
Experience Requirements (cont.)
Caution – if this is the first PERM for this position,
and a labor cert will be filed on behalf of only one
employee who meets only the alternative
combination of requirements, employer might face
skepticism that Master’s +3 is preferred.
Experience Requirements (cont.)
 Do you really want to require experience in the job
offered, such that you would answer YES to H-6?
Probably not.
 DOL/USCIS tend to take a restrictive, literal view of
what constitutes "experience in the job offered" essentially the same exact job title, same exact duties,
etc. How many jobs are there, really, that require 5
years of experience doing the exact same thing as
the job in question? Most jobs that require 5 years
of experience will require that the experience be
relevant, and that, for instance, all of or a part of
the experience was in a certain industry or required
the use of certain key technologies. But that is
different from the exact same job.
Best Practice #9:
Experience in Job Offered or Related?
 Except for those rare cases where experience in
the exact same job really is required, why not
check the NO box in H-6, the YES box in H-10, and
in H-10-B put something like "any job title
involving the development and implementation
of Oracle ERP modules"?
Best Practice #10:
Are Special Requirements truly “special”?
 Are there just too many special requirements?
 Is manager willing to sign a declaration under
oath explaining in detail why each special
requirement "bears a reasonable relationship to
the occupation in the context of the employer's
business and is essential to perform the job in a
reasonable manner"?
Best Practice #11:
Are requirements too special?
 Are they too specific? E.g., is experience in Word
necessary, or will someone with WordPerfect
experience be able to catch on quickly?
 Is it really necessary to have had experience in all 6
programming languages or tools? Realistically, would
someone with, for instance, 4 out of the 6, be able to
slide into the job? Five out of the 6? Maybe they have
to have 3 of them, but only 1 out of the other 3?
Are the special requirements worded in an
objective, straightforward, binary, yes/no way, so
as to eliminate subjective judgments?
Compare:
“Excellent analytical skills.” It
is going to be difficult to
explain why an applicant was
disqualified on the basis that
his or her analytical skills were
merely “very good” but not
“excellent.”
With:
Did your experience include at
least one year where your job
duties included the application of
the regulatory requirements at 21
CFR parts 201 and 211?
Best Practice #11:
Are requirements too special? (cont.)
 Did the FN satisfy each and every special
requirement at the time s/he began working for
the employer?
 Or, if the FN satisfies all or certain of the special
requirements by virtue of experience with the
employer, was it in a job not substantially
comparable to the PERM job?
Best Practice #12:
Salary Range Basics
Is there one good reason not to use a salary range?
Salary Range Essentials:
 The bottom of the range is at least the prevailing wage
 The top of the range is at least the FN’s current salary
 The top of the range is at least the current salary of others
who hold the same position, and
 The top of the range is at least what you anticipate the
FN’s salary will be by the time the I-140 is filed.
Employer Contact Info.
 Easy peasy - just make sure to include it, and that
it is correct.
In-House Media
 Does the language on the electronic in-house media Notice of Filing need
to be exactly the same as the language on the physical in-house Notice of
Filing?
 The regulations require that the employer publish the notice internally using inhouse media--whether electronic or print--in accordance with the normal
internal procedures used by the employer to notify its employees of
employment opportunities in the occupation in question. The language should
give sufficient notice to interested persons of the employer's having filed an
application for permanent employment labor certification for the relevant job
opportunity. It is not required to mirror, word for word, the physical posting. In
most cases, the physical posting language will be the most efficient way to
electronically post the Notice of Filing; in others, the software program used to
create the electronic in-house posting may be unable to accept all of the
language used in the physical Notice of Filing. In every case, the Notice of
Filing that is posted to the employer's in-house media must state the rate of pay
and apprise the reader that any person may provide documentary evidence
bearing on the application to the Certifying Officer. If there is insufficient space
to include the Certifying Officer's address, then information as to where the
address can be found must be provided.
Best Practice #13:
Prepare Text of In-House Media Posting
Does every job duty have to be included? Each
special requirement? Job location? Maybe not? Do
you want to take that chance?
 Prepare a text of the in-house media posting that
includes the entire text of the Notice of Filing.
Why not?
 What about TV monitors?
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions
 You are asked “will this be filed as EB-2?”
 The “right” answer boils down to “You tell me.”
Why?
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
 If the job requirements are a Master’s degree plus
3 years of experience, or, in the alternative, a
Bachelor’s degree plus 4 years of experience, will
that be EB-2?
 The answer is no. Why?
 Are there any other issues with this formulation?
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
 Is your soup perfect? It had better be.
 Matter of Simply Soup Ltd., 2012-PER-00940 (Jan 13, 2015) (AILA
Doc No. 15031765).
 Employer inadvertently omitted a page from recruitment
report. BALCA said CO should have allowed employer to
submit it with the employer’s request for reconsideration since
it was in existence at the time the application was filed and
maintained by the employer to support the PERM application.
 And if you believe THAT . . .
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
 Harmless error – is there such a thing in the
PERM world? Since the regulatory murder of
Health America, probably not.
 Best Practice #14 – don’t make any mistakes!
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Training, Certifications and Licensure
 If the job requirements include training,
certifications, licensure or other credentials, then
the FN’s training, certifications, licensure and
other credentials showing that s/he satisfies the
requirements must be included in Section K.
 See FAQs 7 and 8 under “Alien Experience.”
 No more forgiveness for labor certification
applications filed after July 28, 2014.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
 Life for “All Other” SOC Codes
 In Matter of Meltwater News US1, Inc., 2014-PWD-0005
(July 16, 2014), BALCA found that an “IT Scrum
Master” should have been classified as an Information
Technology Project Manager (15-1199.09) rather than
a Computer and Information Systems Manager (SOC
11-2021). BALCA noted that the IT Project Manager
classification was “the most specific SOC code
available in this case.” The fact that the description fell
within an “All Other” category did not prohibit its use.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
DOL has subsequently stated while the National
Prevailing Wage Center (NPWC) first tries to
identify a match that does not require the “All
Other” category, “NPWC is not opposed to utilizing
the ‘All Other’ category for prevailing wage
purposes where appropriate, but it will only do so
when there is no better match within the existing
SOC definitions.”
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Best Practice #15 – If the shoe fits, try to get
Cinderella to put it on. If your job matches an “All
Other” SOC classification, make the case
aggressively and persuasively in your prevailing
wage determination request.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
New Audit Request #4
 Requests “documentation explaining why U.S.
applicants deemed ‘not qualified’ could not have
attained the skills necessary to perform the
duties listed in section H.11 during a reasonable
period of on-the-job training.”
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
 In practice, this means that even if the job
requirements are “normal for the occupation,” there
still must be a business necessity explanation
explaining why each job requirement is essential in
order to be able to perform the job competently.
 If the employer has done that, then the employer has
already answered the question why the job can’t be
done by someone who doesn’t satisfy each
requirement. And therefore the employer has already
answered why Candidate X, who doesn’t meet certain
of the job requirements, cannot perform the job.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Pre-Employment Drug Testing/Background Checks
Some SWAs force employer to answer yes or no whether
these are required. If the employer answers YES, but
does not include drug testing or a background check as
a requirement on the labor certification application, that
is considered imposing an additional requirement on
potential U.S. applicants that was not required of the FN.
E.g., Matter of Prosoft Associates, Inc., 2011-PER-01209
(Aug 3, 2012) (AILA Doc No. 12080741).
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Pre-Employment Drug Testing/Background Checks
One approach - there is no necessity to submit copies of
the SWA posting in response to an audit request. Per 20
CFR § 656.17(e)(1)(i)(A), the start and end dates entered
on the application shall serve as documentation of this
step. And in Matter of A Cut Above Ceramic Tile, 2010PER-00224 (March 8, 2012) (AILA Doc No. 12030962), an
en banc BALCA panel held that documentation of the
SWA job order is not expressly and specifically required
to be retained under the PERM regulations, which
provide that “the start and end dates of the job order
entered on the application shall serve as documentation
of this step.” 20 CFR § 656.17(e)(1)(i)(A). So don’t.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
BUT:
 As long as there is nothing in the SWA posting to burn
you, perhaps doing something you are not required to
do in response to an audit -- going the extra mile -may earn some brownie points with the DOL analyst.
 DOL might be able to get the postings from the SWA.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Pre-Employment Drug Testing/
Background Checks
 Another approach – check SWA postings
carefully. If drug testing or background checks
are indicated as requirements, make sure they are
listed as requirements on the Notice of Filing and
are included as requirements on the 9089.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Recruitment Steps
 For professional positions, the regulations require
an additional 3 steps out of the 10 listed.
 Why not 4 of 10? Why not 5 out of 10?
 Best Practice #16 – give your labor certification
a pleasing odor. Go the extra mile.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Best Practice #17 – Use H-14 to explain, explain, explain.
Some possibilities:
 Please note also that the alien gained some of the required
experience with the employer BUT IN A JOB NOT
SUBSTANTIALLY COMPARABLE TO THE POSITION FOR
WHICH THIS APPLICATION IS FILED, i.e., the positions do
not require performance of the same duties more than 50%
of the time, and a grid has been prepared by the employer
documenting and attesting to this.
 Will accept applicants with other suitable combination of
education, training or experience.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Note to H-12: 'No' box checked only out of an
abundance of caution due to continuing uncertainty
over meaning of 'normal for the occupation.' Although
the requirements exceed SVP of 7, and the employer can
establish business necessity for its requirements, the
requirements are 'normal' in the 'normal' sense of the
word - this is a senior position requiring advanced
theoretical knowledge and extensive and specialized
experience and expertise, and the employer's
requirements are in line with the requirements of other
employers for similar positions.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Note to H-4-B/H-7: With respect to IT jobs for which
engineering is listed as one of the acceptable degrees in H-4B/H-7, reports from other lawyers indicate denials on the basis
that agricultural engineering majors are not likely to have the
skills necessary to perform, in an acceptable manner, the duties
involved in the position. However, the inclusion of engineering
as one of the acceptable degrees is consistent with the
requirements for similar U.S. government jobs, including IT jobs
posted by the U.S. Department of Labor. E.g., Job
Announcement Number: DE-12-DAL-MSHA-0034. Further, the
mandatory course requirements for an agricultural engineering
degree at major U.S. universities include the kind of intensely
scientific and quantitative coursework that render such a
degree a suitable academic background for IT work, as DOL
itself has recognized by virtue of its own requirements for IT
jobs.
Random HOT Issues, Best Practices, Points for
Discussion & Suggestions (cont.)
Some possibilities:
 Note to F-4: The prevailing wage determination was
issued pursuant to a Towers Watson Survey, hence no
level was indicated. However, entering 'N/A' is not an
option in F-4.
 Note to J-19: The alien satisfies BOTH the primary
educational and experience requirements and the
alternate combination of education and experience.
 Note to H-8-C and H-10-A: The software development
experience requirement is three years with a Master’s
degree, five years of progressively responsible
experience with a Bachelor’s degree.
Thank You!
Jeffrey M. Zimskind
Stevens & Lee
Rebecca R. Massiatte
JMO Firm, PLLC
jmz@stevenslee.com
www.stevenslee.com
rebecca@jmofirm.com
www.jmofirm.com