INSZoom Immigration Conference 2016 - PERM Process Recent Trends

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Gold sponsor Exhibitors

Session: PERM PROCESS – Recent Trends Lead Speaker: Anindita Chowdhury

USILAW – Global Immigration Law Firm

Panelists: Samier K. Mahto UNITEDHEALTH GROUP

Kiran SN HCL Technologies

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PERM - Labor Certification• Program Electronic Review Management (PERM) is the system

used for obtaining labor certification• Labor Certification is obtained from Department of Labor• Labor Certification Process attests that a Foreign Worker is not

displacing an equally qualified U.S. Citizen from the job• If an able, qualified, and willing applicant (U.S. citizen or

Permanent Resident) is not found for the advertised position through the recruitment process, the employer can submit a PERM labor certification application

• First of a Three Step Process for Employment based Permanent Residency

• An approved Labor Certification (Form ETA 9089) certified by the DOL enables filing of an Immigrant Visa Petition (I-140)

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PERM: Step 1 of 3

PERM / Labor Certification

• Not Required for those filing in the EB-1 or EB-2 National Interest Waiver Category. Required of all others

• Labor Certification determines that a Foreign National is not displacing an equally qualified U.S. Worker

Immigrant Visa Petition

• Required of all filers for Permanent Residence• Includes the USCIS Form I-140 and a Letter of Support• Petitioner: Proof of Financial Ability;• Beneficiary: Document required education and experience

Application for Permanent Residence

• An Adjustment of Status to Permanent Residence Petition to the USCIS includes Forms I-485, G-325, I-765, I-131 and Supporting Documentation (including Medical Examination)

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Requirements for Labor Certification Application• Obtain a prevailing wage determination from the State Workforce Agency (SWA) for the offered

position – Can request alternative Wage Source– Employer must match the salary per the prevailing wage – 100%

• Conduct good faith recruitment effort for the position, including:– 2 Consecutive Sunday ads– Post internal (in-house) notice of the job opportunity in a conspicuous location for 10 consecutive business days– Online job posting (i.e., Monster, CareerBuilder) for 10 consecutive business days– Advertise with a trade journal– Place a job order with the state workforce agency for 30 days

• Followed by a 30 day quiet period to review resumes and conduct phone interviews when necessary

• Submission is made online (electronically) or by mail• Timeline for Preparation and filing of ETA-9089: 4-6 months

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PERM Process - Issues• Draft the PERM AD;• Design the Job offered and job requirements carefully;• Required degree and experience must have been gained by the

employee (applicant/beneficiary) before the filing of the PERM application;

• PERM positions can be prospective positions;• Evaluate EB2 vs EB3 petitions;• 3 year Indian Bachelor’s degrees and the risks they encounter at the

PERM and Immigrant Visa Petition (I-140) stages.

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PERM Process• The value of a credential evaluation;• Documentation of previous experience prior to filing the PERM

application;• Experience gained at the same employer;• Applications are subjected to automated screening by the DOL; Current

processing times of PERM cases – 4+ months;• Cases will either get approved, denied or audited;• If audited - employer may be directed to complete additional

recruitment which will be supervised by the DOL.

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Recent Decisions That Impact PERM

• BALCA (Board of Alien Labor Certification Appeals) Decision: Matter of Symantec (Jul. 2014)

– In an en banc decision, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), BALCA held that the additional forms of recruitment do not have to comply with 20 C.F.R. § 656.17(f).• Advertising content requirements for ads placed in newspapers of general circulation or

professional journals (20 CFR 656.17(f)) do not apply to additional forms of recruitment (20 CFR 656.17(e)(1)(ii)).

• Does not waive the requirement to ensure that information contained in the additional forms of recruitment include information that has also been provided on the ETA Form 9089. Failure or omission of salient information could indicate bad faith recruitment efforts on the part of the employer and result in denials.

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… Recent Decisions That Impact PERM …

• BALCA Decision: Matter of Cognizant Technology Solutions US Corp. (Sep. 2016)– BALCA reversed 383 PERM Denials– Held that employer’s failure to inform US workers of Cost of Labor

Adjustment (COLA) was not required to be included in the recruitment and was therefore not a valid ground for denial

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… Recent Decisions That Impact PERM…

• BALCA Decision: Bahwan Cybertek Inc. (Feb. 2016)– BALCA ruled that “regulations do not compel an employer to state

the wage offer in a SWA job order” – Prior to this decision there was a marked increase in denials where

Employer used terms such as “Competitive,” “Depends on Experience” (DOE), “Negotiable,” “Will Discuss With Applicant,” “Other,” or similar verbiage instead of stating the offered salary in PERM Recruitment efforts (SWA job orders)

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Other Recent Decisions – A Mixed Bag• Matter of Infosys (May 2016)

– BALCA overturned denial of Labor Certification where the employer had unanticipated work locations, including the possibility of relocation

• Matter of CEO Ally, Inc. (May 2016)– BALCA upheld a PERM denial because the employer failed to interview a potentially qualified U.S.

worker during the mandatory labor market test. It stated that employers have a duty to pursue further when a resume raises a “reasonable prospect” that a candidate is qualified

• Matter of Waldorf School of Orange County (Nov. 2015)– BALCA panel reversed denial of labor certification stating that employer’s job search radio ad and

web ad on the internal website met regulatory requirements when employer provided audio recording of radio advertisement but not a text copy, and undated copies of its website postings

• Matter of La Hacienda Meat Market, Inc. (Nov. 2015)– BALCA determined that Employer verification of sponsorship was sufficient in the certifying

application that was mailed in even though the Certifying Officer could not contact employer

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Why PERM Recruitment Tool

Attract skilled professionals A benefit that may differentiate you from other companies

Retention tool Reward loyalty by investing in employee Incentive for employee to remain with your company Use an Agreement to Repay Immigration Expenses to recoup I-140/I-485 costs if employee

leaves within certain timeframes

Limits in H-1B status H-1B status is valid for 6 years Additional extensions past 6 years are available when employees have reached certain

milestones in the permanent residence process

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PERM Trends Timing Issues

Prevailing wage determinations: average 109 calendar days Prevailing wage determinations currently being processed from June 2016 PERM decisions (without audit): July 2016 PERM decisions (with audit): February 2016

Modernization Making advertising/recruiting requirements more in line with actual business practices; Allowing employers to correct harmless errors in applications that have been submitted; Allowing foreign national employees to qualify for offered positions based on experience with

the sponsoring employer; Offering a premium processing option for PERM processing; and Updates to the list of shortage occupations that are exempt from the PERM process. Don’t hold your breath – not during this administration

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Prevailing Wage & PERM Application Certification Trend

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PERM Countries of Origin

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Questions

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Thanks!