advanced immigration issues: - holland & hart

Information for Supervisors and HR

November 2013 © Holland & Hart LLP 2013

Advanced Immigration Issues:PERM Labor Certification Process

Topics• What are the basics of immigration?• What steps are involved in sponsoring your immigrant employee for

permanent residency (green card)?• What is your role as a supervisor or recruiter during the permanent

residency process?• What documentation must be presented upon denial?• What are frequent reasons for PERM denials?

November 2013 © Holland & Hart LLP 2013 2

PERM Statistics• 27% of the 72,462 PERM cases submitted in 2013 are under Audit review• 15-20% of all PERM cases are denied• 35% decrease in the number of PERM cases processed in 2013 v. 2012

– 9 months processing for PERM cases– 14 months processing for PERM Audited cases

• 52% of PERM cases require master’s degree; 38% require a bachelor’s• 83% of all PERM candidates are in H-1B status• Popular occupations include:

– Computer and Math 54%– Architecture and Engineering 10%– Management 9%– Business and Financial Operations 7%– Healthcare Practitioners 6%


Immigration Status


Citizen U.S. Passport

Permanent Resident

(Green Card)

Permanent Resident Card I-551

Non-immigrant workers and visitors

(H-1B, J-1, F-1)

Unexpired Foreign Passport and I-94

or I-797 or DS-2019

Non-Immigrant Visas


Source: DHS Office of Immigration Statistics

Temporary Workers


Source: DHS Office of Immigration Statistics

International Student Graduates with bachelor’s degree (F-1)

Student Begins work for 1 year under OPT

Employer decides to move forward – Phone call with attorney

Submits I-129 Petition

Receipt notice

I-797Approval Notice

Begins work as H-1B3-5 months later

New H-1B Worker


I-129Petition for Non-immigrant worker

Foreign born worker with H-1B status (unexpired from non-cap exempt employer)

Telephone call with Attorney

Submits I-129 Petition prior to expiration of H-1B status (at any point)

I-129Petition for Non-immigrant worker

Check 6 year cap (includes H1B1, H-3, L-1A, L-1B time)

Employee may begin work upon receipt(physically received)

3-5 months later

1 month

H-1B Change of Employer


I-797Approval Notice

Receipt notice

Transitioning to Green CardTransition from Nonimmigrant Status (H-1B or L-1) to Permanent Resident


H1B

H-1B Nonimmigrant Visa Permanent Resident (Green Card)

Where are we now?


U.S. University (F-1)

Another U.S. Employer

3 year H-1B 3 year H-1B

PERM Labor Certification ETA 9089

Immigrant Petition I-140

Adjustment of StatusI-485

6th Year

1 2 3

Past

Now

Future

Company

What are the major steps?• Focus first is on Company, not alien• Stage 1: “PERM” Labor Certification

► U.S. Department of Labor (DOL)• Employer tests labor market to learn whether any U.S. workers

appear to meet “minimum requirements of the position”• “Macro” perspective, looking “outward” to job applicants• Filing establishes alien’s “priority date” (important for AOS)

• Stage 2: Immigrant Petition (USCIS Form I-140)► U.S. Citizenship and Immigration Services (USCIS) confirms:

• “Micro” perspective, looking “inward” to specific worker• Is this company a genuine employer?• Does immigrant employee qualify for the position?


Step 3: Adjustment of Status I-485• Focus is on alien, not Company

• USCIS checks whether worker is threat:

► To public security (Criminal Record)

► To public health (AIDS)

► To public purse (Welfare)

• Gating Item: May not apply until PERM priority date is “current”

• Why ? ► Quota, country limit, visa “preference” types (Slide 13)► Numbers “cascade” downward through preferences


Employment-Based Preferences• EB-1: Employment-based first-preference (EB-

1) Petitions: Outstanding Researcher, Multinational Manager (28.6%)► Numbers never exhausted, cascade down to EB-2

• EB-2: Job requires advanced degree or equivalent (B.S. + 5 years’ exp. ) (28.6%)► Numbers not used cascade down to EB-3

• EB-3: Job requires B.S. jobs (28.6%)► Backlog predictions difficult due to changing data



Preference Based on Job RequirementsNot Immigrant Employee’s Degree

• Supervisor determines position responsibilities► And educational requirements

• Confirms with HR Business Partner► For consistency across department, site, and

company► Job mapping

• Affects wages► Next slide

Prevailing Wage

• To protect U.S. workers from hiring of cheap foreign labor

► via labor condition application (LCA)• Requires minimum wage for foreigners (posted on wall)► Prevailing wages

o Registered Nurse $50,232; M.S.: $55,931o Software Developers $57,866; M.S.: $69,950o Database Admin $53,310; M.S.: $66,435o Family Physician $117,208 - $216,819

• U.S. Workers, $7.25/hour, or “magic of the market”


Visa Bulletin, December 2013


All Charge-ability Areas Except Those Listed

CHINA-mainland born

INDIA MEXICO PHILIPPINES

Employment -Based

1st C C C C C

2nd C 08NOV08 15NOV04 C C

3rd 01OCT11 01OCT11 01SEP03 01OCT11 08JAN07

EB2 Visas


Num

ber

of Y

ears

0

1

2

3

4

5

6

7

8

9

10

China

India

EB3 Visas


0

2

4

6

8

10

12

China

India

Num

ber

of Y

ears

EB3 All Other


0

1

2

3

4

5

6

7

All

All

Minimum Qualifications

1. Job Description2. Pre-screening

questions

Prevailing Wage

Immigrant Employee minimally

qualified?

Qualified U.S. applicants?

How Quickly?I-485 Filing

Internally consistent if

audited?Consistent by DOL

standards?

Material Change:

Amended H-1B


Minimum Requirements

• PERM applications based on false or fraudulent minimum qualifications will be denied. Employers and attorneys who willfully misrepresent facts within the PERM process may result in debarment from future submissions, revocations of prior PERM submissions and investigation. 20 CFR §656.31(a)


Minimum Requirements– Are all of the minimum requirements necessary to perform

the job duties?– Did all current and former employees in the same position

meet the education, experience and skill requirements at the time of hire?

– In the future, would you be comfortable requiring all new hires in this position to hold all of the same minimum requirements?

– Which requirements are preferences versus requirements? This process is not intended to find the best qualified candidate on minimally qualified candidates.

– Can the skills or experiences required be easily gained without significant economic hardship to your company? If so, exclude those skills and experiences from the requirements.


Timeline of PERM Labor Cert Process

• Telephone call with supervisor, immigrant employee, HR and attorney

• Drafting and review of job description and minimum qualifications (Supervisor – one month)

• Submit prevailing wage request to DOL – 7 weeks• 35 days of recruitment• 30 days of cooling period• If no qualified U.S. workers, file ETA 9089 with

DOL (6 months to one year processing time)


Recruitment Ads

• Two Sunday newspapers, notices on wall• State Workforce Agency • Employer’s website • College placement office• Web “job boards” (like Yahoo, Hot Jobs, Indeed,

etc.)• Job fairs


Labor Market Test

• If qualified U.S. worker found:► The PERM may not be submitted; or► The PERM must be for multiple open positions,

and• After all qualified U.S. workers hired; • At least one position is still open for the H-1B worker

► Must H-1B worker be fired?• No

► Is PERM recruitment a charade?• DOL regulations require it to learn if U.S. workers want

job


HR Recruiter’s Role• Review Prescreening question responses – if more than 50% yes responses,

forward to supervisor for phone interview within 2-3 weeks.

• The phone interview should be conducted by whoever normally would interview conduct interviews.

• If applicants fail to reply to an interview invitation, e-mail applicant twice and send a letter via USPS return receipt. Retain a copy of the letter and return receipt.

• Send copies of resumes for disqualified candidates after 35 days of recruitment to Attorney.

• Send recruitment ad print outs to Attorney.

• Notify Attorney if any layoffs or terminations occur in comparable positions.

• Ensure the immigrant employee is not involved in the PERM recruitment process, interviewing applicants, or screening resumes. Any job description provided by the immigrant employee must be approved by the supervisor and/or HR.


PERM Interviews• Send prescreening questions via e-mail to applicants for them to respond to each

question.• If applicants respond with “yes” to more than 50% of the prescreening questions,

contact applicants within 2-3 weeks after receipt of resume to conduct a phone interview of the candidate.

• The phone interview should be conducted by whoever normally would interview conduct interviews.

• If applicants fail to reply to an interview invitation, e-mail applicant twice and send a letter via USPS return receipt. Retain a copy of the letter and return receipt.

• Send copies of resumes for disqualified candidates after 35 days of recruitment to attorney.

• Notify Attorney if any layoffs or terminations occur in comparable positions.• Ensure the immigrant employee is not involved in the PERM recruitment process,

interviewing applicants, or screening resumes. Any job description provided by the immigrant employee must be approved by the supervisor and/or HR.


PERM Recruitment Do’s• Reject applicants who are not a U.S. citizen, permanent resident

(green card holder), asylee or refugee. • Reject applicants who do not have the education, experience or

skills required. Any rejection should be based on the totality of the applicant’s qualification, and not one specific skill or experience.

• Reject applicants who are unavailable for interview or accepted another job with another employer. The employer must show multiple attempts to reach the applicant by phone or by mail.


PERM Recruitment Don’ts• Reject “overqualified” applicants if the worker is willing to accept the job

at the wage and conditions offered.• Reject U.S. workers who are less qualified than the immigrant employee if

they possess the minimum requirements of the position.• Reject applicants who live outside the geographic area. Applicants who

state that they are not willing to relocate at their own expense may be rejected as unavailable, but do not assume they will not relocate.

• Divert a qualified U.S. worker to another job opening in order to keep the PERM position open.

• Reject applicants for poor communication skills or heavily accented speech. Avoid disqualification based on subjective criteria such as “culture fit.”

• Reject applicants who lack simple skill sets that can easily be gained without significant hardship to the employer.


Increased DOL Scrutiny

• Audits:► Occurs in 30% of cases nationally► We submit application on-line

• Mail in hardcopy evidence we complied with regulations

• Supervised Recruitment:► Also likely, perhaps for 5% or so of cases

• We advertise again, send resumes to DOL for review• Agency can substitute its judgment for ours

– Don’t need to hire their pick, but PERM would be denied


PERM Audits • 30 days to provide all recruitment ads, resumes, signed ETA 9089• Common issues:

– Evidence immigrant employee has not paid for PERM costs 20 CFR656.12(b)

– Recruitment Documentation:• Referral Program is dated, connected with the PERM position• Language on all ad postings are identical• Ads reasonably apprise applicants of the job offer

– Degree in Engineering was considered overly broad– Interview all potentially qualified U.S. workers– Substantial equivalency on alternative minimum qualifications


Advertising Requirements• 20 CFR 656.17(f) Advertising requirements. Advertisements

placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must:– (1) Name the employer;– (2) Direct applicants to report or send resumes, as appropriate for the

occupation, to the employer;– (3) Provide a description of the vacancy specific enough to apprise the

U.S. workers of the job opportunity for which certification is sought;– (4) Indicate the geographic area of employment with enough specificity

to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;

– (5) Not contain a wage rate lower than the prevailing wage rate;– (6) Not contain any job requirements or duties which exceed the job

requirements or duties listed on the ETA Form 9089; and– (7) Not contain wages or terms and conditions of employment that are

less favorable than those offered to the alien.


Travel• Employers must indicate the geographic area of employment with enough

specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. 20 CFR656.17(f)(4)– Is Telecommuting as a benefit allowed?– Indicate any travel requirements in H.14, as well as indications of

possible work sites in the second line of the work address at H.1.– Is the employee living far from the worksite?


PERM - Layoffs• If an employer has had a layoff of a U.S. worker in the area of intended

employment within the last six months, it must notify and consider any laid off U.S. worker potentially qualified for the job opportunity. 20 CFR656.17(k)

– How has the employer provided notice to laid off workers?– How have laid off workers been considered?


Denials

• 15-20% of PERM cases are denied. PERM is considered an exacting process.

• May file a Motion to Reconsider with the same Certifying Officer

• May file an Administrative Appeal with the Board of Alien Labor Certification Appeals Decisions


Resources

• Labor Certification Registry– http://icert.doleta.gov/index.cfm?event=ehLCJRExter

nal.dspLCRLanding• Dept. of State Visa Bulletin– http://travel.state.gov/visa/bulletin/bulletin_1360.html

• Prevailing Wages– http://www.flcdatacenter.com/


Information for Supervisors and HR

November 2013 © Holland & Hart LLP 2013

PERM Labor Certification Process

Roger Tsai801-799-5976

[email protected]

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