May 2014

Issue link: http://ailahub.aila.org/i/304305

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Lifestyle 9 What's Trending 9 Inter Alia 9 Get Connected 9 Member Advantage 9 Contact Us sponsor: about us: CMB REGIONAL CENTERS cmb regional centers Practice Pointers w Immigration & Crimes u Immigration & Health care w going global w business immigration w behind the case PERM Regulation via Smoke Signal Not Acceptable by Jennifer A. Minear A nyone whose practice includes PERM labor certification is familiar with the ever-shiing sands of the Department of Labor's (DOL) adjudicatory process. Rather than notifying the public of changes in policy through such quaint and old- fashioned methods as notice-and-comment rule making (or even an FAQ), changes in regulatory interpretation are more oen "announced" by the sudden denial of applications that would have once been approved. News of the denial trend is then le to wa through the regulated community like smoke at a forest fire until, one by one, we all smell it and get out of the way, adapting our practices to conform with this new, previously unarticulated standard. Meanwhile, those whose applications served as the "smoke"—the denials that constituted DOL's announcement—are le to smolder in the long-lived embers of the appeals process. Fortunately, there is reason to hope that DOL may have finally goen the message that regulation via smoke signal is unacceptable. In December 2013, DOL reached a selement in a series of Board of Alien Labor Certification Appeals (BALCA) cases filed by Microso Corporation in which DOL suddenly took issue with the manner in which Microso notified potentially qualified laid-off workers of PERM job openings, aer years of having approved PERM applications filed using identical notification methods. en, two months later, DOL actually released an FAQ informing the regulated public how it expects employers to notify laid-off U.S. workers of PERM job openings. Section K Licensure Denials And, now, DOL has backed away from an unannounced interpretation of its regulation regarding positions that require licensure. When an employer files a PERM application for a position that requires an occupational license (e.g., physician, lawyer, teacher, etc.), the licensure requirement is noted in Section H.14 of the ETA Form 9089. Later, in Section K of the form, the employer must list the previous three years of employment history of the sponsored foreign national, as well as "any other experience that qualifies the alien for the job opportunity." Since the inception of the PERM program in 2005, DOL routinely approved PERM applications on behalf of licensed professionals that noted the licensure requirement in Section H.14 and described the foreign national's employment history in Section K. en, in early 2013, DOL began denying about 50 percent of PERM applications this author filed for licensed occupations. e rationale went something like this: You indicate in Section H.14 that the position of physician requires a medical license. And you indicate in Section K that the foreign national is currently employed as a physician by the PERM sponsor. However, since you do not expressly state in Section K that the foreign national holds a medical license, we conclude that he does not and, since you hired the foreign national without a license to practice medicine, a medical license must not really be required for the position. erefore, the position should have been advertised that way in order to give U.S. workers the opportunity to practice medicine without a license. So, case denied. One truly cannot make this stuff up. Stranger than the denials themselves was the inconsistency with which they occurred. is author filed applications for identical positions with the same employer, using identical recruitment, with identically draed ETA 9089 forms resulting in one case being certified AILA's Guide to PERM Labor Certification + LIBRARY BOOK 6 next uw

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