There are several noteworthy developments in the PERM labor certification world requiring employers and practitioners to rethink how to time PERM applications and to (once again) adapt their processes front-to-end. The COVID-19 pandemic combined with high unemployment rates, as well as U.S. Department of Labor (DOL) efforts to change the prevailing wage system, and an apparent increase in scrutiny of PERM applications, have all contributed to a change in the PERM landscape. Below are the top 5 developments employers and practitioners have been facing with respect to PERM preparation and filing: Continue reading “2021 PERM Labor Certification Updates: Processing Times Increase, COVID Accommodations Continue & Prevailing Wages are back to Normal”
A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation” was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations. The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”
Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.
Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries. Continue reading “PERM Gets Rough in an Uncertain Job Market”
On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.
Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window. Continue reading “TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC”
Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees). Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny by the DOL are expected in the short and long term, making it imperative that employers have all of their I’s dotted and T’s crossed when completing the PERM steps.
Nowhere are the details more important than when completing the required PERM “Notice of Filing” step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a “Notice of Filing,” for the employees at the worksite to see for 10 consecutive business days, commonly called a “wall” Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.
During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html
The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.
Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not “normal,” the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.
Recent DOL PERM audits are now requiring that an employer explain why the employer’s job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants. Continue reading “PERM Business Necessity – Back with a Splash?”
Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.
Previous USCIS Guidance: Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.
New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.
If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location. After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.
Compliance: If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.
However, USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location). USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.