Posts Tagged ‘Perm’

PERM Advertisement

February 14, 2013

In a recent case, In the Matter of Oracle America, Inc. the Board of Alien Labor Certification (BALCA) held that if an advertisement says travel May be required, and the ETA 9089 does not say so, then the  PERM will be denied.  This is true even though there was one  advertisement for several positions, and the travel was required.

The PERM regulations hold that the advertisement cannot be more restrictive than the actual 9089 perm form. However the PERM form is unforgivable. No one sees the form but the Department of Labor. And if one forgets to cross the Ts and dot the Is, it results in a denial. There is no way to correct it, once the Holy highness of DOL lay their eyes on it.  If the Advertisements say XYZ, and you inadvertently leave out Z, and the DOL looks at the perm, you cannot withdraw anything. You have to defend your ground.  Because of course the almighty DOL never makes any mistake. I dont know of any court, any other agency that is so unforgiving as the DOL.

The court held that the job description for all the jobs were similar.  There is also a suggestion that too broad job description for different positions in one advertisement may not be feasible anymore. Although this is allowable under the PERM regulations, I think the DOL will soon clamp down on it, stating that the description has to be specific, or else the US Citizens wont know how to apply.

If there were USCs available to do the job, the Employer would not go through the whole hassle of advertising and paying a lawyer and going through the laborious Labor Certification process.  Thus is actual fact, the only person that the DOL looks out for are people who use the copy and paste function in their computer, thereby eliminating any risk of accidentally  leaving out any information in the form.

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

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PERM AUDITS

September 25, 2012

Anyone who is recently filing a PERM-Labor Certification knows that the Department of Labor (DOL) is auditing a significant portion of them. I think this is in response to the financial melt down. Lehman Brothers fell in 2008 starting the financial crisis, but it takes DOL this long, (and right about the time we are going back to solvency) to institute a new policy.  Or maybe the Administration just wants to find work for its top heavy officers.  But for whatever reason, PERM audits have increased.

Those who have filed even one PERM knows that DOL is huge on form rather than substance. (After all this organization still believes in newspapers). You have to dot ever i and cross every t. So use the copy and paste function in your computer.  We draft one advertisement, and then copy and paste it for the ads, the prevailing wage, the notice, everything.

Be sure to say travel required nationally, if thats the case. And yes, you can input it in H-14.  But it is not necessary to input the Kellog magic language.  If you do, watch out for the DOL genie to come back and scrutinize if you have considered people with “suitable combination of education and experience. ”

Its especially galling that DOL is asking whether the employer or employee paid for the perm. The employer already has to open their own account with the DOL and sign the attorney in. The DOL e mails the employer and asks about the filing once its done.  Why dont they have a question there asking whether the employer paid for the perm? Or in fact all the salient points. That way you save the hassle and time loss for an audit.  But then, when have Government agencies ever been paid to think.

 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

PERM 9089 should match SWA

August 9, 2012

The DOL has complex rationale, where the filing of a PERM form, 9089 becomes a mechanical process, whereby one should suspend their thought process. In a recent case, Prosoft Associates Inc,  The employer put down “drug testing and background check in the job order for the State Workforce Agency, but forgot to add that to the 9089.  The employer later sought to amend it, but  the Board of Alien Labor certification (BALCA) cannot look at new evidence.  Neither does the Certifying Officer give any leeway to an employer to change anything. BALCA held that the requirement of drug testing and background check, not otherwise mentioned in 9089, would “deter otherwise well qualified individuals from applying.”  Everyone with common sense realizes that the employer simply forgot to add this requirement in the 9089, and that such requirements are routine part of most employers.  But then, the Dept of Labor lacks that sense.  And of course people with common sense don’t visit the DOL’s website to look for jobs either.

The simple thing to do is to craft a final job description, and then copy and paste it in the Prevailing Wage Request, every advertisement, and in the 9089. That way, employers wont make mistakes. Because whatever the employer does on the 9089 form is chiseled in stone like the ten commandments, never to be corrected.

 

 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

 

 

PERM and Form over Matter

March 30, 2012

The filing of a labor certification is like a game. It has all these utterly inconsequential rules. And if you don’t dot your I s and cross your T s, it gets denied. This is totally contrary to our doctrine of substance over matter.  This common law doctrine has been in our legal system since ages, but of course, that would require thinking, something that Department of Labor (DOL) employees are not required to do.

 

And the Board of Alien Labor Certification (BALCA)  over the years has upheld some and denied some of those rules. BALCA has said that if you advertise on a Sunday and by mistake put down a Monday date, that is fine. The court has said its not required to put in “magic language” if you want alternative qualifications. Now the case, World Agape Mission Church has done away with 2 other inane requirements.

 

 

The Employer had advertised in the website of the State Workforce Agency. (SWA) But did not have the documentation to prove that during the audit. The Board of Alien Labor Certification (Balca) said that the regulations does not require the Employer to keep such documentation. Most SWAs have crappy websites. I wonder which American would go looking for a job in the SWA database rather than going to Monster or other such engines.

 

The Employer also does not need to print its name if they advertise in Private Employment Firm.

 

Other inane requirements still in force: advertise in Sunday newspaper. This is DOL’s way of preserving this dinosaur we have called newspapers.  At the rate that newspapers are closing, and at the rate that DOL changes their regulations, the DOL will have that regulations at least 2 years after the last newspaper closes.

 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

The Perm Game

February 18, 2011

In order to do a Labor Certification, commonly known by its acronym, PERM, the US employer has to “test” the labor market to prove that no Americans are available to do the job. They do this by advertising in various places. The Department of Labor prescribes to us which particular places we can advertise. And that’s where this game starts. Its a stilted process which has no resemblance to real life. We have to advertise in the Sunday edition of a newspaper. While this might keep the newspaper industry in the US afloat, in real life especially for jobs like “software engineer”–nobody reads print newspapers anymore. Then we have to advertise in the State Workforce Agency’s web site. I bet you did not know that each state has a job search website run by the workforce agency. I did a google search on “Engineering jobs in Texas” and the workforce agency’s website did not come up in the first two pages.

Yet when employers use a private Recruitment firm to do the “test” of labor market, they can get denied unless they have adequate documents to delineate exactly how they conducted recruitment. In re Unica Corporation, Balca 2010-PER-00006

So my advise to Employers is play the game by the DOL rules. In this game, the referee (DOL) is unforgiving, so avoid fouls by keeping meticulous records of all advertisement and recruitment report before starting to play the PERM game. If you are using any private recruitment agency, have a signed statement from them as to what they did, and keep it in the file. Follow the letter of the law, not its intent. Is this contrary to American jurisprudence? You bet.

 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

What is a Company for Immigration?

July 2, 2009

A Company is defined as its Federal Employment Identification Number (FEIN) for Immigration issues. When a Corporation seeks to hire a foreign national under a federal Immigration Law, it stands to reason that the Company should have a FEIN in order to hire that individual.

In a recent decision, In the Matter of Ornelas Inc, The Board of Immigration Appeals verified that the Company’s yellow page listing, or business licenses does not establish a bona fide Company.

Additionally, if two related companies have two different FEIN numbers, and the alien has worked for one entity, and the other entity is sponsoring the alien, the alien can use that experience and it will not be counted as experience from the same Company. Usually the alien cannot use the experience from the same company for labor certification, with the rationale being that the company can easily employ and American and train that person as well. But if say XY has two FEIn numbers, and the alien has worked for a division of Company X, and the petitioner is Y, then that expiration can be counted, even though the two companies are in the same location.

Thus if the two related companies have two different FEIN numbers, the Labor Dept treats them as two separate companies. Does not make sense, but then, the Dept of Labor never lives in a real world.

Contact Houston Immigration Lawyer, Annie Banerjee, for more information

New PERM Filings

May 6, 2008

From June 01, 2008, all PERM Applications will be filed in Atlanta. Right now the PERMS from the Western part of the country was filed in Chicago, while the Eastern half had Atlanta.

The Centralization will ensure the same standard for all PERMS in the US. Also, hopefully the Perms can be adjudicated expeditiously. Time was when labor certificate was a totally regionally affair, with different regions having different rules. But we are fast becoming one nation, under technology. So this move to one center will hopefully be better and eliminate regional differences.

The PERM Game

May 1, 2008

The Perm process is like a game. The basic proof is that there are no qualified Americans to do the job, and hence we must give permanent residency to the alien so that she can complete the job. To do this, the employer has to “test the market” by advertising and trying to recruit Americans, and if that fails then it proves that there are no qualified applicants in that area to do the job. But this recruitment process is very unlike what a real life employer would do, despite what the DOL (that is the Department of Labor, not the Dummies on Life) would say.

First there are strict requirements of who can do the job. Under the DOL guidelines Bill Gates, Steve Jobs or Michael Dell would not be able to perform a “professional” software job, because they do not possess a degree.

There are series of hoops and you negotiate through, the job title, the job description, the requirements (the all important EB-2 or 3) the OES (Obviously Enormously Stupid Department which takes every job and categorizes them arbitrarily into 4 job zones) and the prevailing wage category. None of this is natural, none of it real world. Its just your ability to play the game right. Its a great game for us, English majors who could never shoot an actual hoop.

Then you advertise in the Sunday Newspaper, who reads those anymore? Maybe the dinosaurs at the DOL still do, but when was the last time a computer professional actually looked at a newspaper?

Oh yes, and the all important SWA ads sites, the Department of Labor’s job search web site. I wonder what the google ranking for those web sites are for specific search terms. I typed in “tech jobs in Texas” and did not see workintexas web site in the first page. Did anyone ever get an actual job from that web site?

Of course if you play this game right, and jump through all the hoops, you can file your case. But then comes the certifying officer. I wonder under the trickle down brain theory, what the IQs are for federal officers. The chief executive was rejected by St John’s School, Houston, got into Yale through legacy, and probably has an IQ of about 100. So what does my certifying Officer have?