Guidance in Preparing PERM Labor Certification Applications
Most employers wanting to sponsor foreign national employees for green cards must become familiar with filing a Program Electronic Review Management (PERM) labor certification with the Department of Labor (DOL), a process that is meant to protect the U.S. job market. The PERM process is an exacting and onerous one, and applications are often denied for reasons that appear to be exceedingly technical and unpredictable. Denials of PERM applications may be appealed, and published decisions of those appeals by the administrative body, Board of Alien Labor Certification Appeals (BALCA), offer some guidance in preparing successful applications.
One important decision concerns the content of advertisements for the offered job. The regulations set forth specific advertising and posting requirements for recruitment efforts, some of which are mandatory for all types of positions and some additional forms that must be used for professional or skilled-worker positions. On appeal it was held that DOL may not deny a PERM application because the content of all the advertisements does not match; the additional forms of recruiting may contain qualifications not required in the mandatory forms. Nevertheless, it is advisable, to the extent possible, to use identical language in all recruitment efforts to avoid audits or outright denials by DOL.
Another decision addresses the PERM application itself. The application has a box that asks whether experience in the job offered is required for the job, and another in which to answer whether experience in an alternative occupation would be acceptable. This is confusing, because an employer is not allowed to consider the experience a foreign worker gained on the job. (In actuality, most employers are interested in sponsoring employees because they have proven themselves to be valuable in the position offered.) However, to confirm that the job is open to U.S. workers, the employer cannot require more stringent qualifications of a U.S. worker than the foreign worker. This means that the employer cannot ask for more experience or education than the foreign worker had at the time he or she was hired. It is therefore unclear which box should be checked when experience is required in the same occupation, but not with the same employer. BALCA has affirmed that it is acceptable to require experience in an alternate occupation but not the same occupation.
The regulations require that an employer who files a PERM application must notify the employer’s employees at the place of employment, and specifies the content of the notice, which includes the employer’s name. BALCA affirmed the denial of a PERM application when the notice included the name and phone number of the employer’s president, but not the company.
These issues are highly technical, and show a tendency of BALCA to strictly enforce the language of the regulations. Even obvious typos may not be forgiven and are difficult to correct. Employers and their employees must get it right when the PERM application is filed, especially since appeals are difficult and extend by years an already drawn-out, laborious process.
Visa “Refusals”: Applicants are Reminded of Disclosure Requirement on DS-160 Visa Applications
When a consular officer “refuses” to issue a visa, he or she may do so under a section of law referred to as “§221(g).” This can occur when the consular officer believes from the statements made by the applicant or in the documents submitted with the application that the person is ineligible for a visa. Often, before finally adjudicating the visa application, the officer will request additional evidence or documents from the applicant or evidence the posting of a bond at a port of entry, and then will approve the visa. If the visa application is abandoned at this stage, it would be considered a refusal. A refusal also can occur when an applicant submits an application but requests the return of his or her passport before the visa can be issued. This past summer’s “visa freeze” left many travelers unable to obtain visas to enter the U.S. in time for scheduled events or activities. As result, such travelers who submitted their applications prior to the freeze but requested their passports before the visa could be issued were technically “refused” a visa under §221(g). Such a refusal must be disclosed on future visa applications. Yet, many foreign nationals may not know that they must disclose this type of “refusal” and may not have disclosed on further visa applications. What are the consequences if a foreign national applies for a visa in the future and fails to disclose a visa refused?
In recent guidance, the State Department advises that consular officials make case notes to indicate why a visa application has been refused under §221(g) and assures that during the summer system outage, consular officers indicated any systems-related refusals. More importantly, DOS advises that the failure to disclose a §221(g) refusal resulting from the visa freeze on subsequent visa applications will not, on its own, lead to a finding of misrepresentation. Indeed, DOS reiterates its guidelines to its consular officers: an NIV applicant’s misrepresenting the fact that the applicant was previously refused an NIV is not, in itself, a material misrepresentation, even though the consular officer may feel that knowledge of the previous visa refusal might have been useful. In the absence of anything to the contrary, the officer should assume that the previous refusal was predicated on the previous interviewing officers finding that the foreign national was not a qualified nonimmigrant at the time of that interview. Such an opinion is limited to the circumstances of the prior application at that time. Since circumstances change, eligibility must be decided in light of the current situation in each application. Consequently, a misrepresentation that conceals only the fact of a previous refusal is not material. However, DOS cautions, where the misrepresentation conceals not only the fact of the previous refusal, but also objective information not otherwise known or available, there may be a basis for finding that the absence of such facts tended to cut off a line of inquiry and thus rendered the misrepresentation material.
Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail firstname.lastname@example.org