Archive for the ‘PERM Labor Certification’ Category

Special PERM Issues – There’s No Place Like Home

October 26th, 2012
posted by at 12:43 am

By Pam Prather

 

 

 

 

 

 

 

 

We’ve all heard the sage advice regarding real estate, that the three most important considerations in purchasing are location, location, location. Well, that’s kind of true in many employment-based permanent residency cases, too.

One of the first things you do when a client hires you to do a PERM application is to strategize the case.  And one of the first steps in strategizing is figuring out the location for which you will file the Prevailing Wage and test the job market. Many times this is quite simple, and you can immediately move on to the next steps. In other cases, however, “Where”? is not such an easy question to answer.

This is an important issue, because:

The Immigration and National Act, 8 U.S.C. § 1182(a)(5)(A), provides that “[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that…there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor ..” Thus, the Department of Labor’s regulations require an employer to prove through a test of the labor market that that there are not sufficient workers in the United States who are able, willing qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. (emphasis added) (Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007).

For roving employees, tele-workers, traveling salesmen, etc., there really is no “home” for their job.  But just as they have lagged behind in responding to other changes in the contemporary workforce, the Department of Labor (DOL) has not yet fully addressed this issue when it comes to Labor Certification.  Sometimes, Immigration practitioners have had to play a “let’s see if this will work” game with the DOL Alien Employment Certification office.

For most of us, guidance on this issue began with the Employment Training Adminstration’s (ETA’s) Memorandum of May 16, 1994.  In it, the government provided instructions regarding labor certifications (pre-PERM) which stated “applications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.”

Of course, nothing is ever that simple in immigration law.  The Board of Alien Labor Certification Appeals (BALCA) has also ruled that “the mere presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location”.  If the location is thought to be too rural, or has a Prevailing Wage that is significantly lower, or the employer fails to conduct recruitment on a national scale, DOL has been know to “kick” the application out.  If the address of the work site is the same as the alien’s home address, the PERM is likely to pick that up for audit.  These scenarios are not necessarily bad, because at least they give you the opportunity to explain case details more clearly.  Naturally, though, an audit response can add significantly to the overall processing time.

Some cautious practices can help quite a bit when a job location is in question.  You can get a Prevailing Wage for possible work sites, and make sure the employer offers a salary that matches the highest one.  You can ensure that the recruitment campaign is widespread – even national. You can post Notices at as many sites as the employer will provide. These are ideas to take into consideration when strategizing your case, and analyzing risk versus benefit.

Hopefully we’ll soon have a Department of Labor that truly understands our modern employment practices.  It would be great to have job descriptions, wage reports, recruitment guidelines, etc. that better reflect today’s market.

Until then, remember – wherever you go, there you are…..

Do You Qualify for a Green Card in the U.S. National Interest?

July 31st, 2012
posted by at 10:07 pm

By Pam Prather

Do you qualify under the EB-2 National Interest Waiver

Since the Immigrant Visa backlogs for some EB-3 (and even EB-2) categories have become such a source of frustration and delay for foreign nationals aspiring to Permanent Residency, we are frequently asked about the EB-2 National Interest Waiver (NIW). This Waiver allows an applicant to completely skip the PERM (Labor Certification) process and to file for Permanent Residency without a sponsoring employer.

Professionals in certain fields – and with particular abilities and accomplishments – may qualify for an EB-2 national interest waiver. They must be:

  • Immigrants who hold advanced degrees.  These immigrants must have an advanced degree such as a Masters degree or Doctorate in their field. Most scientists and researchers meet the advanced degree requirement.

            OR

  • Immigrants who have exceptional abilities. Immigrants who are particularly gifted in science, the arts or business may qualify for an EB-2 National Interest Waiver based upon their proven achievements.

In order to apply for a National Interest Waiver, you must show that you meet the criteria of possessing an advanced degree and having exceptional abilities. In addition, you must demonstrate that: 1] that the benefit of your proposed activity will be national in scope; 2] you seek employment in an area of “substantial intrinsic merit” to the U.S.; and 3] that the requirement of a Labor Certification will adversely affect the national interest.

National. Your work must benefit the U.S. as a nation, and not just one area of the country.  An example is an applicant who worked for a State Department of Transportation.  It was not at all difficult to document that his achievements in developing structure materials for bridges surpassed those of the majority of his peers.  Unfortunately, his work only impacted a certain region of the U.S.  You must be ready to provide evidence that the results of your work are national in scope.

Interest. Proving the merit of your specialty involves a thorough explanation of the work, and a description of its application to real life.  Your petition should include a thorough CV and letters of support from experts in the field. Some topics we’ve worked with include cancer research, research into alternative energy sources, and even a researcher who worked on the Space Elevator.  These fields of study and development are fundamentally significant.  Their very nature interests and benefits us all.

Waiver. The application must also address the fact that the time, effort and expense of a PERM application (or Labor Certification) would be of little worth. The PERM process is meant to determine whether there are qualified U.S. workers for the position, and if there would be an negative impact to the U.S. workforce by the hiring of a foreign national. In the case of an approvable NIW case, it should be clear that the immigrant’s work is so highly specialized that their Permanent Residence in the U.S. would be of no detriment.  Basically, that the immigrant’s background and accomplishments in the field are so significant that there is no negative impact to the U.S. workforce by foregoing the labor certification process.

A National Interest Waiver is approved for only the highest echelon of professionals in the sciences, arts and business. Because its benefit is so great, the application must be prepared with the utmost care.  Speak with an experienced immigration attorney regarding the details of your work, your achievements, and your desire to contribute to the United States.

Can You Relate? Understanding the ‘Invalidating Relationship’ for PERM Cases

April 28th, 2012
posted by at 6:54 pm

By Pam Prather

In the area of Employment-Based immigration, both the PERM and the I-140 Immigrant Petition are based – among other things – upon a “bona fide job opportunity”. Many factors go into the analysis of this particular piece of the pie. One is whether the beneficiary is related to the petitioner.

Question 9 of the PERM ETA-9089 asks “Is the employer a closely held corporation, partnership of sole proprietorship in which the alien has an ownership interest, or is there a familial relationship between the owners, stockholders, partners, corporate officers, incorporators and the alien?”

The point is whether the relationship influences the petitioner – in advertising for the position, reviewing resumes, and/or interviewing applicants – to the detriment of the U.S. worker. Although the relationship itself would not normally be the sole factor in the denial of a petition, it definitely has bearing. The DOL and the USCIS may determine that because of the relationship, the job was notactually available to any other candidate, and therefore not bona fide.

It is concerning that “familial” is defined quite broadly in some DOL and USCIS decisions. In Matter of Summart 374.00-INA-93, BALCA upheld a denial stating that “A relationship invalidating a bona fide job offer may arise where the beneficiary is related to the petitioner by ‘blood’ or it may ‘be financial, by marriage or through friendship’”. (emphasis added)

The term “friendship”, rather than clarifying, seems to open up another can of worms. What definition is the government using?

Mirriam Webster defines friendship as:

1. a : one attached to another by affection or esteemb : acquaintance

2. a : one that is not hostile b : one that is of the same nation, party, or group

3. one that favors or promotes something (as a charity)

4. a favored companion

For both employers and employees, then, it is extremely important to disclose any prior relationship between owner/operator/executive and the beneficiary of the employment-based immigration petition.The difference between approval and denial could theoretically depend on a chance encounter at an industry networking function, or finding each other at your children’s softball game.

A competent immigration lawyer should be consulted to ensure that the job opportunity is properly made available toU.S. workers, and the bona fide nature of the position is made clear to the federal agencies involved.