Advanced Immigration Issues: PERM Labor Certification Process Information for Supervisors and HR

November 2013 © Holland & Hart LLP 2013 Topics

• What are the basics of immigration? • What steps are involved in sponsoring your immigrant employee for permanent residency (green card)? • What is your role as a supervisor or recruiter during the permanent residency process? • What documentation must be presented upon denial? • What are frequent reasons for PERM denials?

November 2013 © Holland & Hart LLP 2013 2 PERM Statistics

• 27% of the 72,462 PERM cases submitted in 2013 are under Audit review • 15-20% of all PERM cases are denied • 35% decrease in the number of PERM cases processed in 2013 v. 2012 – 9 months processing for PERM cases – 14 months processing for PERM Audited cases • 52% of PERM cases require master’s degree; 38% require a bachelor’s • 83% of all PERM candidates are in H-1B status • Popular occupations include: – Computer and Math 54% – Architecture and Engineering 10% – Management 9% – Business and Financial Operations 7% – Healthcare Practitioners 6%

November 2013 © Holland & Hart LLP 2013 3 Immigration Status

Citizen U.S. Passport

Permanent Permanent Resident Resident Card I-551 (Green Card)

Non-immigrant Unexpired Foreign workers and visitors Passport and I-94 (H-1B, J-1, F-1) or I-797 or DS-2019

November 2013 © Holland & Hart LLP 2013 4 Non-Immigrant Visas

Source: DHS Office of Immigration Statistics

November 2013 © Holland & Hart LLP 2013 5 Temporary Workers

Source: DHS Office of Immigration Statistics

November 2013 © Holland & Hart LLP 2013 6 New H-1B Worker

International Student Student Begins work for Graduates with bachelor’s 1 year under OPT degree (F-1)

I-129 Petition for Non- Employer decides to move immigrant Submits I-129 Petition forward – Phone call with worker attorney

I-797 Receipt Approval Begins work as H-1B notice Notice 3-5 months later

November 2013 © Holland & Hart LLP 2013 7 H-1B Change of Employer

Foreign born worker with H-1B status (unexpired from non- Telephone call with Attorney cap exempt employer)

1 month

Receipt Employee may begin Submits I-129 Petition I-129 notice work upon receipt prior to expiration of Petition for Non- (physically received) H-1B status (at any immigrant point) worker

3-5 months later

I-797 Check 6 year cap (includes Approval H1B1, H-3, L-1A, L-1B time) Notice

November 2013 © Holland & Hart LLP 2013 8 Transitioning to Green Card

Transition from Nonimmigrant Status (H-1B or L-1) to Permanent Resident

H1B

H-1B Nonimmigrant Visa Permanent Resident (Green Card)

November 2013 © Holland & Hart LLP 2013 9 Where are we now? U.S. University Another U.S. Past (F-1) Employer

6th Year Company Now 3 year H-1B 3 year H-1B

PERM Labor Immigrant Adjustment Certification Petition I- of Status Future 1ETA 9089 23140 I-485

November 2013 © Holland & Hart LLP 2013 10 What are the major steps?

• Focus first is on Company, not alien • Stage 1: “PERM” Labor Certification ► U.S. Department of Labor (DOL) • Employer tests labor market to learn whether any U.S. workers appear to meet “minimum requirements of the position” • “Macro” perspective, looking “outward” to job applicants • Filing establishes alien’s “priority date” (important for AOS)

• Stage 2: Immigrant Petition (USCIS Form I-140) ► U.S. Citizenship and Immigration Services (USCIS) confirms: • “Micro” perspective, looking “inward” to specific worker • Is this company a genuine employer? • Does immigrant employee qualify for the position?

November 2013 © Holland & Hart LLP 2013 11 Step 3: Adjustment of Status I-485

• Focus is on alien, not Company • USCIS checks whether worker is threat:

► To public security (Criminal Record)

► To public health (AIDS)

► To public purse (Welfare) • Gating Item: May not apply until PERM priority date is “current” • Why ? ► Quota, country limit, visa “preference” types (Slide 13) ► Numbers “cascade” downward through preferences

November 2013 © Holland & Hart LLP 2013 12 Employment-Based Preferences • EB-1: Employment-based first-preference (EB- 1) Petitions: Outstanding Researcher, Multinational Manager (28.6%) ► Numbers never exhausted, cascade down to EB-2 • EB-2: Job requires advanced degree or equivalent (B.S. + 5 years’ exp. ) (28.6%) ► Numbers not used cascade down to EB-3 • EB-3: Job requires B.S. jobs (28.6%) ► Backlog predictions difficult due to changing data

November 2013 © Holland & Hart LLP 2013 13 Preference Based on Job Requirements Not Immigrant Employee’s Degree • Supervisor determines position responsibilities ► And educational requirements • Confirms with HR Business Partner ► For consistency across department, site, and company ► Job mapping • Affects wages ► Next slide

November 2013 © Holland & Hart LLP 2013 14 Prevailing Wage

• To protect U.S. workers from hiring of cheap foreign labor ► via labor condition application (LCA) • Requires minimum wage for foreigners (posted on wall) ► Prevailing wages o Registered Nurse $50,232; M.S.: $55,931 o Software Developers $57,866; M.S.: $69,950 o Database Admin $53,310; M.S.: $66,435 o Family Physician $117,208 - $216,819 • U.S. Workers, $7.25/hour, or “magic of the market”

November 2013 © Holland & Hart LLP 2013 15 Visa Bulletin, December 2013

All Charge- CHINA- ability Areas mainland INDIA MEXICO PHILIPPINES Except Those born Listed

Employment - Based

1stCCCCC

2nd C 08NOV08 15NOV04 C C

3rd 01OCT11 01OCT11 01SEP03 01OCT11 08JAN07

November 2013 © Holland & Hart LLP 2013 16 EB2 Visas 10

5 China 4 India

3 Number of Years

November 2013 © Holland & Hart LLP 2013 17 EB3 Visas 12

6 China India

4 Number of Years

November 2013 © Holland & Hart LLP 2013 18 EB3 All Other All 7

3 All

November 2013 © Holland & Hart LLP 2013 19 Minimum Qualifications How Quickly? I-485 Filing Prevailing Wage

Material Change: 1. Job Description Amended H-1B 2. Pre-screening Qualified U.S. questions applicants?

Internally consistent if audited? Immigrant Consistent by DOL Employee minimally qualified? standards?

November 2013 © Holland & Hart LLP 2013 20 Minimum Requirements

• PERM applications based on false or fraudulent minimum qualifications will be denied. Employers and attorneys who willfully misrepresent facts within the PERM process may result in debarment from future submissions, revocations of prior PERM submissions and investigation. 20 CFR § 656.31(a)

November 2013 © Holland & Hart LLP 2013 21 Minimum Requirements

– Are all of the minimum requirements necessary to perform the job duties? – Did all current and former employees in the same position meet the education, experience and skill requirements at the time of hire? – In the future, would you be comfortable requiring all new hires in this position to hold all of the same minimum requirements? – Which requirements are preferences versus requirements? This process is not intended to find the best qualified candidate on minimally qualified candidates. – Can the skills or experiences required be easily gained without significant economic hardship to your company? If so, exclude those skills and experiences from the requirements.

November 2013 © Holland & Hart LLP 2013 22 Timeline of PERM Labor Cert Process • Telephone call with supervisor, immigrant employee, HR and attorney • Drafting and review of job description and minimum qualifications (Supervisor – one month) • Submit prevailing wage request to DOL – 7 weeks • 35 days of recruitment • 30 days of cooling period • If no qualified U.S. workers, file ETA 9089 with DOL (6 months to one year processing time)

• Two Sunday newspapers, notices on wall • State Workforce Agency • Employer’s website • College placement office • Web “job boards” (like Yahoo, Hot Jobs, Indeed, etc.) • Job fairs

• If qualified U.S. worker found: ► The PERM may not be submitted; or ► The PERM must be for multiple open positions, and • After all qualified U.S. workers hired; • At least one position is still open for the H-1B worker ► Must H-1B worker be fired? • No ► Is PERM recruitment a charade? • DOL regulations require it to learn if U.S. workers want job

November 2013 © Holland & Hart LLP 2013 25 HR Recruiter’s Role • Review Prescreening question responses – if more than 50% yes responses, forward to supervisor for phone interview within 2-3 weeks. • The phone interview should be conducted by whoever normally would interview conduct interviews. • If applicants fail to reply to an interview invitation, e-mail applicant twice and send a letter via USPS return receipt. Retain a copy of the letter and return receipt. • Send copies of resumes for disqualified candidates after 35 days of recruitment to Attorney. • Send recruitment ad print outs to Attorney. • Notify Attorney if any layoffs or terminations occur in comparable positions. • Ensure the immigrant employee is not involved in the PERM recruitment process, interviewing applicants, or screening resumes. Any job description provided by the immigrant employee must be approved by the supervisor and/or HR.

• Send prescreening questions via e-mail to applicants for them to respond to each question. • If applicants respond with “yes” to more than 50% of the prescreening questions, contact applicants within 2-3 weeks after receipt of resume to conduct a phone interview of the candidate. • The phone interview should be conducted by whoever normally would interview conduct interviews. • If applicants fail to reply to an interview invitation, e-mail applicant twice and send a letter via USPS return receipt. Retain a copy of the letter and return receipt. • Send copies of resumes for disqualified candidates after 35 days of recruitment to attorney. • Notify Attorney if any layoffs or terminations occur in comparable positions. • Ensure the immigrant employee is not involved in the PERM recruitment process, interviewing applicants, or screening resumes. Any job description provided by the immigrant employee must be approved by the supervisor and/or HR.

• Reject applicants who are not a U.S. citizen, permanent resident (green card holder), asylee or refugee. • Reject applicants who do not have the education, experience or skills required. Any rejection should be based on the totality of the applicant’s qualification, and not one specific skill or experience. • Reject applicants who are unavailable for interview or accepted another job with another employer. The employer must show multiple attempts to reach the applicant by phone or by mail.

• Reject “overqualified” applicants if the worker is willing to accept the job at the wage and conditions offered. • Reject U.S. workers who are less qualified than the immigrant employee if they possess the minimum requirements of the position. • Reject applicants who live outside the geographic area. Applicants who state that they are not willing to relocate at their own expense may be rejected as unavailable, but do not assume they will not relocate. • Divert a qualified U.S. worker to another job opening in order to keep the PERM position open. • Reject applicants for poor communication skills or heavily accented speech. Avoid disqualification based on subjective criteria such as “culture fit.” • Reject applicants who lack simple skill sets that can easily be gained without significant hardship to the employer.

• Audits: ► Occurs in 30% of cases nationally ► We submit application on-line • Mail in hardcopy evidence we complied with regulations • Supervised Recruitment: ► Also likely, perhaps for 5% or so of cases • We advertise again, send resumes to DOL for review • Agency can substitute its judgment for ours – Don’t need to hire their pick, but PERM would be denied

• 30 days to provide all recruitment ads, resumes, signed ETA 9089 • Common issues: – Evidence immigrant employee has not paid for PERM costs 20 CFR 656.12(b) – Recruitment Documentation: • Referral Program is dated, connected with the PERM position • Language on all ad postings are identical • Ads reasonably apprise applicants of the job offer – Degree in Engineering was considered overly broad – Interview all potentially qualified U.S. workers – Substantial equivalency on alternative minimum qualifications

November 2013 © Holland & Hart LLP 2013 31 Advertising Requirements Certification • 20 CFR 656.17(f) Advertising requirements. Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment must: – (1) Name the employer; – (2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer; – (3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought; – (4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity; – (5) Not contain a wage rate lower than the prevailing wage rate; – (6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and – (7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

• Employers must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. 20 CFR 656.17(f)(4) – Is Telecommuting as a benefit allowed? – Indicate any travel requirements in H.14, as well as indications of possible work sites in the second line of the work address at H.1. – Is the employee living far from the worksite?

• If an employer has had a layoff of a U.S. worker in the area of intended employment within the last six months, it must notify and consider any laid off U.S. worker potentially qualified for the job opportunity. 20 CFR 656.17(k)

– How has the employer provided notice to laid off workers? – How have laid off workers been considered?

• 15-20% of PERM cases are denied. PERM is considered an exacting process. • May file a Motion to Reconsider with the same Certifying Officer • May file an Administrative Appeal with the Board of Alien Labor Certification Appeals Decisions

• Labor Certification Registry – http://icert.doleta.gov/index.cfm?event=ehLCJRExter nal.dspLCRLanding • Dept. of State Visa Bulletin – http://travel.state.gov/visa/bulletin/bulletin_1360.html • Prevailing Wages – http://www.flcdatacenter.com/

Roger Tsai 801-799-5976 [email protected] Information for Supervisors and HR