News Highlights: AILA Conference

The following are selected news highlights concerning labor certification applications and the Student and Exchange Visitor Program (SEVP) from the recent American Immigration Lawyers Association’s (AILA) annual conference, held June 18-21, 2014, in Boston, Massachusetts:

Department of Labor

AILA reminded the audience that the Department of Labor (DOL) is not a fee-based operation and is funded only by Congress. The increase in labor certification cases only puts more pressure on the agency to do more with less. AILA panelists reminded the audience to understand that pressure and to appreciate DOL’s efforts.

Federal Register Notice

DOL is accepting comments on continued use of the current Form 9089. Comments are due July 7, 2014. The Federal Register notice is available at .

Prevailing Wage Issues

• DOL recommends that practitioners take a two-fold approach to addressing a potentially incorrect prevailing wage determination: (1) file a redetermination request; and (2) follow up with the Center Director. Both options are reviewed at a fairly high level and take about the same amount of time, approximately 60 days. One can pursue both avenues because the actions are reviewed by a different team. If one is still unsuccessful after pursuing both avenues, the next step would be to appeal to the Board of Alien Labor Certification Appeals (BALCA).
• DOL confirmed that it looks at employer-conducted and commercial surveys, including Radford and Towers surveys. DOL is familiar with the various surveys that are available and is aware that although the job descriptions on the Form 9141 and the surveys may match, if a position carries management duties, there may be an even better match with job descriptions that include the management duties. Positions that carry supervisory duties are in different categories and at higher levels with higher wages. Where there is such a mismatch in levels, the current system does not allow DOL to suggest a different wage level from the surveys, but must default to the Occupational Employment Statistics (OES) wage levels, which renders a JobZone mismatch. This may change in the future, but for now, there is no option to provide more detailed information in rejecting a survey. Other reasons for rejecting surveys submitted include not matching enough of the job description or where the position is a combination of jobs and the survey only addresses one of the jobs. The ultimate goal for the DOL is to protect U.S. workers against “adverse wage impact” and also to determine whether there is a better fit between the job description on the Form 9141 and the available survey information.
• The Bureau of Labor Statistics created the Standard Occupational Code (SOC) to be used throughout the government. These codes are not created specifically for DOL’s Office of Foreign Labor Certification (OFLC). They are updated every 8 years, and the Bureau of Labor Statistics (BLS) is updating them now. OFLC is spending time catching up with them and updated the PERM system with the SOC 2010 codes about 2 to 3 weeks ago. The codes are constantly changing, albeit in a slow and deliberate fashion. People can comment on the process and DOL encourages comments.
• American Competitiveness and Workforce Improvement Act and prevailing wages: U.S. Citizenship and Immigration Services (USCIS) and DOL base their determinations on slightly different regulatory language. Also, once DOL makes a determination for one employer, it does not revisit the analysis each time. If an employer disagrees, it can use the redetermination process.

Form 9089 and Beneficiary Qualifications

AILA recommends that denial of a PERM labor certification application solely because of not listing a license should be reported to the AILA-DOL liaison committee. A motion for reconsideration should be filed at the same time.

AILA has been in discussions with the DOL concerning issuing guidance to practitioners on where best to include a beneficiary’s qualifications. DOL reported that it is close to finalizing a plan of action for a new FAQ. It will still take some time because, in addition to licensure, there are analogous issues to be considered. DOL is reviewing the Form 9089 and instructions. DOL suggested that practitioners list all the experience and qualifications gained with a particular job under the particular job experience listed on the Form 9089. The bottom line is that practitioners should list all the credentials on the Form 9089. One can list a credential even without a job title and this will not cause a denial of the application.

Recruitment Efforts

Given the conflicting holdings in Matter of Credit Suisse Securities and Matter of Symantec Corporation, DOL is following Matter of Credit Suisse Securities (applying 20 CFR § 656.17(f) recruitment instructions to more than newspaper and professional journal ads) in the meantime. AILA submitted an amicus brief on this issue in May 2014.

Audit Tiers

DOL indicated that one of the goals in posting information concerning audit tiers is to bring applications more into compliance. These tiers, however, are not static and DOL continues to evaluate them in relation to agency-run statistics. For example, in 2009 when people were getting laid off in New York City, DOL was still receiving applications where the job opportunities were only requiring a bachelor’s degree with no experience while the offered salary was $100,000. This raised concerns, and DOL continues to examine the ongoing changes in the market to determine the tiers.

Case Consolidation

There is no mechanism at the DOL level for consolidating similar cases.

Practitioners may ask BALCA to do that.

However, if DOL sees a trend, on its own, it may consolidate cases.

SEVP

According to reports, panelists at the AILA conference noted that changes are expected to the Student and Exchange Visitor Program (SEVP) related to F-1 students in optional practical training (OPT) programs performing in jobs related to their fields of study, and improvements in OPT reporting. These changes are in response to a U.S. Government Accountability Office (GAO) report issued in February 2014 on OPT oversight for F-1 and M-1 students.