Copy
Check out our latest edition of USADNEWS!
View this email in your browser
Volume X, Issue 3 August 2016

In This Issue 

1. DOL Modifies Position on Salary Language in Ads 
2. BALCA Rejects 'Harmless Error' Argument                      

3. United States Unemployment Rate July 2016
4. PERM Processing Times as of August 15, 2016 

1. DOL Modifies Position on Salary Language in Ads

As USADWEB reported late last year, the Department of Labor (DOL) had started a practice of denying PERM applications for containing what it considered to be “vague” expressions of salary when terms such as “Competitive,” “Depends on Experience (DOE),” “Negotiable,” “Not Applicable,” or “Other” were used to describe the salary as opposed to an actual wage figure. In December 2015 the American Immigration Lawyers Association (AILA) posted a Call for Examples on its website and requested consideration from the DOL at the October 2015 Stakeholder’s Meeting.

Denials based on the use of this language create an issue when some State Workforce Agencies (SWA) and campus placement centers use systems that require a salary description and force employers to choose one of the terms from a preset dropdown list. PERM regulations do not require an employer to list the salary in an advertisement or job order. The Preamble to the regulations (69 Federal Register at 77348) stipulates that “the wage rate must be equal to the prevailing wage rate or higher” if the employer chooses to include it. Interpreting these generic descriptors as vague and misleading expressions of salary forces an employer to list the actual wage in the advertisements to avoid denial.

The DOL has now modified this position, as an August Practice Alert from AILA explains:

During the last DOL Stakeholder’s Meeting in May 2016 and again during the DOL Open Forum at the AILA Annual Conference in June 2016, the DOL confirmed that is is no longer denying PERM applications when a recruitment source includes Depends on Experience (DOE), Negotiable, Competitive Salary, or similar language in lieu of stating the actual salary in the following limited circumstances:

  1. Section G of the Form 9089 includes a salary range; or
  2. The Employer can evidence in the audit response that the recruitment source’s system automatically inserts DOE, Negotiable, Competitive, or similar when a salary field is left blank and includes evidence of the mandatory nature of the requirement, such as screenshots, etc.

Please note that the DOL will continue to deny applications when a specific salary is listed in Section G of the FORM 9089 and the employer voluntarily includes the contested language in an advertisement in lieu of the specific wage. AILA advises employers to file a Request for Reconsideration with the Certifying Officer (CO) if a case is denied and the above limited conditions are met. If the CO has already denied a reconsideration request and an appeal is pending with the Board of Alien Labor Certification Appeals (BALCA), AILA recommends filing a Motion to Remand from BALCA to the CO.

As an additional Practice Reminder, AILA points out that employers are not required to submit a copy of the actual SWA job order, as USADWEB reported in March 2012 when the en banc BALCA panel decided the Matter of A Cut Above Ceramic Tile (En Banc Review Addresses Issue of SWA Job Order Documentation). If an employer chooses to provide the SWA documentation, however, the CO may deny the application based on any incorrect information that appears in the job order. As always, USADWEB will provide you with first and last day prints for all SWA job orders and other web postings. Where necessary, we can also provide the requested evidence that a SWA or other recruitment source requires the insertion of such general salary language.

AILA continues to ask members to submit examples of PERM denials, as well as denials of Requests for Reconsideration and the results of Motions to Remand from BALCA. Examples can be submitted through this Call for Examples: PERM Denials for Using “Competitive Salary” or “Depends on Experience”.

2. BALCA Rejects 'Harmless Error' Argument

Another case decided by the Board of Alien Labor Certification Appeals (BALCA) underscores the serious consequences of making a typographical error when submitting a labor certification application. The recent decision in the Matter of Robert Bosch LLC (August 25, 2016) determined that a Certifying Officer (CO) is justified in refusing to consider supplemental documentation that corrects seemingly innocuous typos in an application and audit response.

In this case, the CO requested from the employer “the resumes and applications for all U.S. workers who applied[…]” as well as a report documenting the reasons the employer rejected the applicants. The recruitment report the employer provided listed 62 applicants, yet the employer provided detailed information for only 61. The CO denied the application on the basis that the employer had failed “to provide the reason(s) for rejection of one applicant as required in 20 C.F.R. § 656.17(g)(l).”

The employer requested reconsideration, explaining that the recruitment report listed 62 applicants due to an error in the recruitment chart the employer had compiled to track responses. In the spreadsheet, which the employer subsequently submitted, the applicants were listed in rows 1-62, but row 53 was missing. Consequently, although the employer listed 62 applicants, there were in fact only 61. The employer argued that because they were in fact in compliance with the PERM regulations, their application should not be denied due to a “harmless error” in their audit response. They referred to the decision in HealthAmerica (July 2006) to support their claim.

The Board concurred with the CO’s denial based on evidentiary limitations in the regulations at 20 C.F.R. § 656.24(g)(2). BALCA also rejected the employer’s appeal to the HealthAmerica decision, pointing out that the decision had been effectively overturned when the Employment and Training Administration (ETA) amended the regulations shortly thereafter in 2007. The decision in Sushi Shogun (May 2013) affirmed this interpretation of the amended regulation at 20 C.F.R. § 656.11(b), which prohibits an employer from modifying its application. In fact, the ETA explicitly denounced the HealthAmerica decision in the Final Rule of May 2007, declaring it to be “inconsistent with the Department’s objective[…]” and asserting that “typographical or similar errors are not immaterial if they cause an application to be denied based on regulatory requirements.”

In addition to Sushi Shogun, BALCA cited Hankins, Charles (November 2015), in which the employer’s application was denied because it submitted a recruitment report that incorrectly stated the advertisements had been placed in Florida instead of Illinois (the area of intended employment). The employer argued this was a harmless error and that supporting documentation proved the ads had run in compliance with the regulations. Nevertheless, the Board described the recruitment report as “deficient documentation” and concluded that “under the very restrictive evidentiary limitations imposed on motions for reconsideration by Section 656.24(g)(2)(ii), the Employer could not cure its failure to provide an accurate recruitment report with its audit response by supplying a recruitment report created only after the denial letter exposed the error.”

The pattern established here is clear. BALCA takes a very strict view of the evidentiary limitations in the regulations, which essentially leaves no room for error when submitting an application or preparing an audit response.

3. United States Unemployment Rate July 2016

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The unemployment rate remained unchanged at 4.9% in July.

4. PERM Processing Times as of August 15, 2016

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

 

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews May 2016
Audits December 2015
Reconsideration Requests to the CO May 2016
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

About USADWEB
USADWEB, LLC.
 is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For over a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

As always, USADWEB welcomes your feedback.

If you have suggestions for content, please click here.
If you have suggestions on how we can better serve you, please click here.
Finally, if you have any questions or comments regarding anything you read in a NewsBlast, or if you have additional information that you would like to share, please feel free to contact us.

USADVolume X, Issue 3 August 2016

Our mailing address is:                                   
USADWEB, LLC
1498 Reisterstown Road #330                           

Baltimore, MD 21208
(P) 866-USADWEB or 410-580-5414, (F) 410-580-5417

www.USADWEB.com
                                                   
The USADNEWS Blast is the eNewsletter from USADWEB, LLC, providing updates on immigration ad placement services. This bulletin is not sent unsolicited. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of USADWEB's services.
Copyright © 2016 USADWEB All rights reserved.

*|UNSUBSCRIBE|*






This email was sent to <<Email Address>>
why did I get this?    unsubscribe from this list    update subscription preferences
USADWEB · 1498 Reisterstown Road #330 · Baltimore, MD 21208 · USA

Email Marketing Powered by MailChimp