EB TRACK: ALL THINGS LABOR CERTIFICATION

Linda Rose, Nashville (Moderator)

Kevin Miner, Atlanta

Sarah Peterson, Minneapolis

Bob White, Chicago

FIRST UPCONSULTANTS

CHOOSING A FLAVOR: --PROFESSIONAL--SPECIAL HANDLING--NON-PROFESSIONAL

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PROFESSIONAL

• 20 CFR § 656.17(e)(1)

• Requires at least a bachelor’s degree or higher

• Recruitment must include:

• SWA

• 2 Sunday Ads

• 3 of 10 additional recruitment steps

• NOF [20 CFR § 656.10(d)(3)]

• Remember: Travel and telecommuting must appear in Sunday ads and NOF

• Don’t forget: 20 CFR § 656.15 for Schedule A

SPECIAL HANDLING

• 20 CFR § 656.18

• College and University teachers: "more qualified”

• Competitive recruitment and selection must include:

• Signed statement by an official with hiring authority

• Final report recommending the foreign national

• At least one ad placed in a national professional journal

• Written statement attesting to the foreign nationals credentials

• NOF [20 CFR § 656.10(d)(4), (d)(5)]

• Must be filed within 18 months after the selection is made

• Can still use 20 CFR § 656.17, and use the “more qualified” standard

NON-PROFESSIONAL

• 20 CFR § 656.17(e )(2)

• Does not ordinarily require a bachelor’s degree

• Recruitment must include:

• SWA

• 2 Sunday Ads

• NOF [20 CFR § 656.10(d)(3)]

FIRST UPCONSULTANTS

DEFINING THE JOB OPPORTUNITY AND

MINIMUM REQUIREMENTS

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THE PERM FOUNDATION

What is a PERM foundation and why is it important?

THE PERM FOUNDATION

• Understanding the offered position

• Refining the offered position

• Immediate PERM portal registration

THE PERM FOUNDATION

• What are the minimum requirements for position?

- There is a different standard for university professors.

• Matchy-Matchy: To match or not to match?

• When are requirements excessive?

• Make sure foreign worker qualifies

THE PERM FOUNDATION

THE PERM FOUNDATION

• Business necessity & reasonable period of training

• Documenting minimum requirements and business necessity

FIRST UPCONSULTANTS

GETTING THE PREVAILING WAGE DETERMINATION RIGHT

THE OLD AND THE NEW

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NOVEMBER 2009 PREVAILING WAGE DETERMINATION POLICY GUIDANCE

(AILA DOC. 10010468)

WHAT’ S

OLD?

GUIDANCE IS STILL APPLICABLEWHAT’S

OLD?

NO CHANGE IN HOW TO PREDICT WAGE DETERMINATION

WHAT’S

OLD?

HOW TO DO 5-STEP WAGE ANALYSIS

WHAT’S

OLD?

1. Identify the right SOC

2. Compare employer’s experience requirement with the SOC SVP range

Ex: SVP 7 = 2-4 years

◦ At or below, no level point

◦ Low end, 1 level point

◦ High end, 2 level points

◦ Exceeds, 3 level points

3. Compare employer’s education requirement with

Education and Training chart or ONET education

◦ Same or lesser degree, no level point

◦ One degree higher, 1 level point

◦ Two degrees higher, 2 level points

If not on chart, look to ONET to see what

“most” occupations require or what “some

require.”

4. Assess supervision

5. Assess other special requirements, such as foreign language and travel

BALCA Decision: Matter of Reed Elsevier, Inc., 2008-PER-00201 (Apr. 13, 2009)

Using the “wrong” SOC

will yield the wrong wage

WHAT’S

NEW?

• With the addition of new occupations, there is more to

choose from, including “All Other” occupations

• Subtle difference in duties; major difference in wage

• Watch for similar occupations with crossover duties

• Anticipate SOC with higher wage if there is a

crossover of duties

• Develop job description that eliminates crossover

duties

OFLC database will be updated July 1.

WHAT’S

NEW?

• PWD issued before July will be valid only for 90 days.

• OFLC holds PWDRs until new data are released so it

can use the new and presumably higher wage.

• PWD processing time – 4+ months.

Form 9141: Application for Prevailing

Wage Determination

WHAT’S

NEW? • New form is expected in May.

• What are the key differences?

Validity

Period Test

When must you file PERM Form 9089?

Validity Period: April 1, 2019 to June 30, 2019

• Assume advertising began on May 1, 2019. Can you begin

advertising prior to the validity period?

• Assume advertising will begin on June 15, 2019. Can you file

PERM after the validity period?

• See 20 CFR § 656.40(c) and Matter of Karl Storz Endoscopy-

America, 2011-PER-00040 (Dec. 1, 2011)

FIRST UPCONSULTANTS

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DEVELOPING A RECRUITMENT STRATEGY THAT FITS YOUR EMPLOYER

ENSURING THE EMPLOYER UNDERSTANDS THE

LABOR MARKET TEST

• Explaining the Labor Market Test – The purpose is to determine whether or not there is a

qualified U.S. worker who is ready, willing, and able to perform the job offered

• A Labor Market Test is just that – a test. A qualified U.S. worker may be found, and the

employer then can choose to hire that person or not proceed further with the labor

certification application.

• The PERM regulations define the steps to take for the labor market test. Following

those steps and the requirements set forth in the regulations is critical.

CHOOSING THREE FORMS OF SUPPLEMENTAL

RECRUITMENT

• Most of the labor market test is defined by regulation, but the employer gets to choose the three

forms of supplemental recruitment.

• The regulations do not require the employer to mirror its normal recruitment process when

choosing the three forms of supplemental recruitment.

CHOOSING THREE FORMS OF

SUPPLEMENTAL RECRUITMENT

• Job fair

• Employer’s website

• Job search website

• On-campus recruiting

• Trade or professional

organization

• Campus placement office

• Radio or television

• Private employment firm

• Employee referral program

CHOOSING THREE FORMS OF SUPPLEMENTAL

RECRUITMENT

Beware of recruitment sources

and services that change the text

of the advertisement to better

“market” the job. This can create

significant problems in the labor

market test.

UNDERSTANDING MATTER OF SYMANTEC

Matter of Symantec Corp, 2011-PER-01856 (En Banc, July 30, 2014)

• 20 CFR § 656.17(e)(1)(ii)(C) requires that the three forms of supplemental recruitment advertise the

occupation involved in the application. The specific advertisement requirements for the newspapers of

general circulation or professional journals and the Notice of Filing do not apply for the three forms of

supplemental recruitment.

• However, some employers choose to include all content anyway for strategy reasons.

AUDITS

• Audit triggers

• What to expect

• What to do

• How does it interrupt processing times?

QUESTIONS + ANSWERS

Linda Rose, Nashville (Moderator)

Kevin Miner, Atlanta

Sarah Peterson, Minneapolis

Bob White, Chicago