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AVOIDING PERM MINEFIELDS Robin Dana ODonoghue Bennett Savitz David Ware.

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Presentation on theme: "AVOIDING PERM MINEFIELDS Robin Dana ODonoghue Bennett Savitz David Ware."— Presentation transcript:

1 AVOIDING PERM MINEFIELDS Robin Dana ODonoghue Bennett Savitz David Ware

2 Engineering Degree Requirement Submitting Job Orders Elimination of Business Necessity boilerplate language from Audit Template

3 Related Resources – See AILA DOL Liaison Committees 2012 Research Tools Advisory (AILA Doc. No ): Resources on AILA InfoNet: Board of Alien Labor Certification Appeals (BALCA) Cases & Decisions: BALCA Decisions dating back to 1993 DOL Cases & Decisions, Other than BALCA: Decisions dating back to 2002 DOL Agency & Liaison Information: Regulations, Agency Guidance & News, Liaison Activity, State Job Order Processes DOL Resource: Office of Administrative Law Judges Immigration Collection: The DOLs collection of statutes, regulations, reference materials, and case decisions

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6 Travel with fixed worksite Masterex Tech., 2011-PER (July 30, 2013) KPMG, 2011-PER-02673, (January 23, 2013) Roving (current undetermined worksites) Software Prof Serv, 2011-PER (Sept 10, 2013) Keane, 2010-PER (May 24, 2011) Estisbew Tech Group, 2010-PER (Feb 21, 2012)

7 Future transfers (to determined or undetermined sites) Vedicsoft Solutions, 2010-PER (Feb 23, 2012) Oxford Systems, 1997-INA-0387 (June 23, 1999) Telecommuting JDA Software, 2011-PER (Sept 27, 2012)

8 Topics of Discussion Increase in wage level? Place of advertisement? Place of posting? Verbiage in ads, posting? Transfers: If indicated in PERM, does this protect PERM for I-140/AOS purposes if Ben transferred?

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10 20 CFR (h)(4)(ii) states: If the beneficiary already is employed by the employer AND does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employers alternative requirements, Then, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.

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12 Applicant Evaluation and Contact Issues Related BALCA Cases: JP Morgan Chase, 2011-PER (Mar. 27, 2012) W. Alex Choi, CPA, PC, 2011-PER (Sep. 26, 2013) Twins, Inc., d/b/a Twins Hardware Floors, 2012-PER (Nov. 1, 2013)

13 Applicant Evaluation and Contact Issues Topics of Discussion: How may an employer determine whether an applicant is a U.S. worker? When is an employer allowed to reject an applicant based solely on the resume? If the requirements are not unduly restrictive, may an employer reject an applicant if the resume shows clearly that the applicant does not meet the minimum requirements without further inquiry? When should the employer be instructed to inquire further into the qualifications of the applicant? What if the requirements are such that the applicant may be able to be trained during a reasonable period of time? How should employers contact applicants? What should an employer do if it is unable to confirm whether attempts to contact applicants were successful?

14 American Showa, 2011-PER (Jan 24, 2014) My Plumber, 2011-PER (July 3, 2013) South Island Pub Serv Dist, 2011-PER (Sept 19, 2012)

15 Topics of Discussion What is DOLs current position on Section K? What is the current Section K trend? What is the intent of the language at the beginning of Section K? What should be included in Section K? If a qualification does not fit chronologically or within employment history, where should it go? Is AILA Liaison working on Section K issues?


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