1. THE PERM DEVELOPMENT LIFECYCLE
American Immigration Lawyers Association NY Chapter DOL Committee January 9, 2017 CLE
THE PERM DEVELOPMENT LIFECYCLE
– FROM DRAFTING OVER RECRUITING TO FILING

2. Index of Topics/Handouts
Pre-drafting Considerations: Foreign National’s Non-Immigrant History and Timing of Prevailing Wage Request and Recruitment
Considerations in Drafting the PERM Job Description and Prevailing Wage Request (additional hand-out: Practice Advisory on Use of Alternate Wage Surveys)
Tips on When and How to Challenge a Prevailing Wage Determination
Recruitment Issues (additional hand-out: Practice Advisory on Content Requirements)
Form 9089 Filing and Post-Filing Issues

3. Pre-drafting considerations: Foreign National’s Non-Immigrant History and Timing of Prevailing Wage Request and Recruitment

4. Know Your Foreign National’s Non-Immigrant Visa Situation
What visa status does the intended PERM beneficiary currently hold?
Does the status have a maximum number of years in which the beneficiary can hold such status?
H-1B – 6 Year Visa Max
L-1A – 7 Year Visa Max
L-1B – 5 Year Visa Max
L-1 time counts against H-1B time
Can any time abroad be recaptured?

5. Know Your Foreign National’s Non-Immigrant Visa Situation
Can PERM/Green Card sponsorship enable the visa status to be extended past a possible maximum stay?
H-1B : Yes, according to the American Competitiveness in the Twenty-First Century Act (“AC21”), there are two situations in which PERM Green Card sponsorship can lead to extensions past the 6 year visa Max:

6. Know Your Foreign National’s Non Immigrant Visa Situation
One Year Extension Past Visa Max Date - Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based Immigrant Petition
Conditions for the Granting of an H-1B Extension of Stay Under AC21 §106(a). Assuming the alien is otherwise qualified for an extension of H-1B status, USCIS will grant an extension beyond the 6th year, in one year increments, if evidence is provided that:
A labor certification is unexpired at the time of filing of the Form H-1B extension petition; and
The labor certification was filed with DOL or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
The extension and the I-129 petition are otherwise approvable.

7. Know Your Foreign National’s Non-Immigrant Visa Situation
Three Year Extension Past Visa Max Date – Extension of H-1B Status Based on Approved I-140 Immigrant Petition
Conditions for the Granting of an H-1B Extension of Stay Under AC21 §104(c) - provides for extensions of H-1B status for beneficiaries of immigrant petitions who are eligible to be granted permanent resident status but for the per country limitations applicable to immigrants. Specifically, an extension beyond the six year limit is permissible for an alien who is:
The beneficiary of an employment-based first, second or third preference petition filed under INA s.204(a); and
Eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs.

8. Know Your Foreign National’s Non-Immigrant Visa Situation
Three Year Extension Past Visa Max Date – Extension of H-1B Status Based on Approved I-140 Immigrant Petition
Further, the May 30, 2008 Interoffice Memorandum of Donald Neufeld, Acting Associate Director, Domestic Operations, indicates that so long as all other H-1B statutory and regulatory requirements are met, extensions may be requested in increments of up to three (3) years beyond the 6-year limit.

9. Know Your Foreign National’s Non Immigrant Visa Situation
Can PERM/Green Card sponsorship enable the visa status to be extended past a possible maximum stay?
L-1A and L-1B Status:
No, PERM/Green Card sponsorship cannot extend stay past visa max date. Consider filing to change status to H-1B, if the beneficiary is from a country where there is Immigrant visa retrogression
Consider whether an argument can be made for EB-1-3

10. Know Your Foreign National’s Non-Immigrant Visa Situation
Does the PERM Beneficiary hold Single Intent or Dual Intent Status; Should I explore a Change of Status?
Dual Intent Status –  Allows those visa holders to enter the U.S. in Non Immigrant status with the permissibility to simultaneously seek lawful permanent resident status.
H-1B, L-1A, L-1B.
Single Intent Status – These visa status holders are not permitted to have the intent to seek law permanent resident status upon entry into the U.S.
TN, B-1/2, F, J, H-3, H-2 (must maintain foreign residence)
E, O, P (must have intent to return abroad, but PERM or I-140 generally does not affect status or renewals)

11. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline
Prevailing Wage regulations found within PERM regulations at 20 CFR § Determination of prevailing wage for labor certification purposes.
In order to file an ETA 9089 Foreign Labor Certification (PERM application), a Prevailing Wage Request must be first filed with the U.S. Department of Labor and a Prevailing Wage Determination must thereafter be issued by the U.S. Department of Labor.

12. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline
At the time of filing the 9089 PERM application, the Prevailing Wage Determination must be valid.
20 CFR § (c) – Validity Period - The State Work Force Agency (SWA) must specify the validity period of the prevailing wage, which in no event may be less than 90 days or more than 1 year from the determination date. To use a SWA PWD, employers must file their applications or begin the recruitment required by §§ (d) or within the validity period specified by the SWA.

13. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline

14. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline
What this means is that the employer need not wait for a determination to be issued before recruitment is started (the risk is here that the wage provided when the PWD comes through does not work). However, if the employer does not wait for a determination to be issued before starting recruitment, then the PERM application must be filed before the expiration date of the determination.
If the employer decides to wait for the determination to be issued before starting recruitment, then the PERM application can be filed after the passing of the validity period of the determination, so long as recruitment was commenced prior to the expiration of the validity period.

15. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline
Under no circumstances can a PERM application be filed without a valid determination. Therefore, consider Department of Labor processing times for determination issuance in conjunction with PERM target filing date. Current DOL processing times for determinations is about 4 to 6 months.

16. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline
If the Foreign National Beneficiary has Visa Max Out Concerns and you have a target filing date which has to be met, keep these two timing issues in mind:
Prevailing Wage Determination Issuance – Currently taking Department of Labor 4 to 6 months to issue determinations
Recruitment Length – PERM recruitment campaign must last a minimum of 60 days before a PERM application can be filed (in light of 30-day job order + 30 day cool-down period). In reality, between the sponsoring employer’s recruitment responsibilities and gathering and analyzing recruitment results from the sponsoring employer, it may be closer to 90 days, or even more, before some employers can file the PERM application.

17. Impact of Prevailing Wage Filing and Expiration Date on Recruitment Validity and PERM Filing Deadline
Conclusion – If your Foreign National Beneficiary has visa max out issues, under current conditions, be sure you are ready to file your Prevailing Wage Request and simultaneously commence recruitment at least 4 months prior to your targeted filing date. Anticipate what the Prevailing Wage will be and make sure you recruit at that salary level or higher.

18. Considerations in Drafting the PERM Job Description and Prevailing Wage Request
Requirements for the PERM position must represent the actual minimum requirements for the position (20 CFR §656.17(i))
Comparable positions in the industry
Comparable position in the sponsoring company
Prior hiring practices by sponsoring employer
Business Necessity (20 CFR §656.17(h)(1))

19. PERM POSITION: Drafting Strategies (cont.)
PW considerations (20 CFR §656.17(h))
SOC/ONET code and skills level
Alternate surveys provided by the employer
Travel requirements
Combination of occupations
Managing or leading others, or “Senior” in the title
FN’s qualifications
On-the-Job Training (20 CFR §656.17(i)(3))
Foreign 3-year degrees
Combined education and experience
No degree cases
Employment Verification Letters
Consulting at the petitioner as an outside vendor cannot count unless 50+% different from current role

20. Tips on When and How to Challenge a Prevailing Wage Determination
Low success rate
Best practice, wait to get PW before running advertisements
Know what adds levels:
“Senior” in the job title
Number of people supervised
Combination of occupations
Unusual requirements (e.g., COBOL for a programmer because the language is obsolete)
Travel requirements (more than just occasional conferences or meetings)
Reported successful redeterminations
NPWC added a level for licenses that were inherently required for the position
NPWC issued PWD with prior year’s OES data
NPWC issued PWD for less than 90-day validity
NPWC will not accept a new survey in a redetermination request.
Matter of Honeywell International, Inc., 2014PWD00012 (October 16, 2014) -- Original PWR included a Towers Watson survey. On redetermination, a Dietrich survey was included. NPWC did not accept the new survey. BALCA found that NPWC did not abuse its discretion in not accepting a new survey in a redetermination request.

21. Recruitment Issues
Required Recruitment for PERM applications governed by 20 CFR.17(f):
20 CFR (f) – Regulates required content for Sunday newspapers advertisements, alternative professional journals and notices of filing
20 CFR (e) – Job order placement - for professional occupations (e)(1)(i)(A) – non-professional – (e)(2)(i)

22. Recruitment (cont.)
En Banc BALCA Cases Distinguishing Required Content in Recruitment
Matter of Symantec, 2001-PER (July 30, 2014) en banc – Distinguishing the content requirements for recruitment governed under 20 CFR (f) and 20 CFR (e)
Matter of a Cut Above Ceramic Tile, 2010-PER (March 8, 2012): Evidentiary requirements for job orders is the plain wording of the regulation – relevant dates of placement listed on Form ETA 9089.
Post A Cut Above……Guidance from Stakeholder’s Minutes on Required Evidence for Job Orders

23. Recruitment (cont.) Professional Occupations
Require three additional recruitment steps out of choice of ten under 20 CFR (e)(1)(ii)
Defining a professional occupation for additional PERM recruitment: 2009 Revised Prevailing Wage Determination Policy Guidance, Appendix D lists professional occupational codes
Additional recruitment choices:
Job fairs
Employer’s Website
Job Search Website (not employer’s)
On-campus recruiting
Trade or professional organizations
Private employment firms
Employee referral program with incentives
Campus placement offices
Local and ethnic newspapers
Radio and television advertisements
Evidentiary documentation laid out for each category in the regulations

24. Recruitment (cont.) Word of Caution: 20 CFR 656.10(c)(8) Denials
Requires a demonstration that the job opportunity is clearly open to a U.S. worker
Beware of recruitment that contradicts ETA 9089 or eliminates important information (“potential chilling affect on applicants”)
Matter of Norman W. Fries, Inc., 2012-PER-03756, (October 28, 2016)
Matter of Albertsons LLC, 2015-PER (Dec. 6, 2016)
Matter of Webilent Technology Inc., 2012-PER (Dec. 13, 2016)

25. Form 9089 Filing and Post-Filing Issues
Review thoroughly before filing (2nd set of new eyes is useful)
Try and never file the day after a system maintenance
Delay in sponsorship questionnaires going out
Usually coincides with system maintenance activity
After a few days, have the employer send an to the DOL asking the DOL to contact the company and company contact. ** PROVIDE DIRECT DIAL AND **

26. Continued … Form 9089 Filing and Post-Filing Issues
Critical issues to always consider/weigh/review
Paper vs. electronic filing
Reviewing the content of the PW to make sure it matches content of 9089
Review job requirements and skills listed in Section H all appear somewhere in Section K
Foreign national MUST qualify for the job offered
Degree issues - one degree for EB2
Licenses/designations/memberships indicated in Section H appear in Section K
If relying on experience with the same employer but in a substantial dissimilar job, start the job description in the relevant Section K job with the words “In a substantially dissimilar job …. “
Make sure PWD is valid for 90 days
Make sure all recruitment is outside of quiet period with the exception of one optional form
Properly identify if there is any familial relationship between owner and employee
If you have alternate requirements make sure they are substantially equivalent to the primary requirements
Inclusion of Kellogg language when necessary
Watch for -only communication from the DOL, such as audits, RFIs and suspensions
Post-recruitment, pre-filing, and post-filing changes of name, mergers, acquisitions, etc.