Attendees: DOL: OFLC: Brian Pasternak, Elissa McGovern ... · PDF fileDOL/OFLC...

DOL/OFLC Stakeholders’ Meeting Notes March 29, 2012

Attendees: DOL: OFLC: Brian Pasternak, Elissa McGovern, Bill Rabung, Bill Beardsley (H-2A

Ombudsman), other DOL staff Solicitor’s Office: Harry Sheinfeld

AILA: Grace Hoppin, Sharryn Ross, Warren Leiden, Deborah Notkin, Ingrid Brey, Ron Wada, Jeanne Malitz, Betsy Lawrence, Eleanor Pelta, Victor Nieblas Pradis Other Stakeholders attending: ABA, ACIP, NAFSA, and others.

GENERAL PROGRAM UPDATES PROVIDED BY DOL

PERM Statistics Can be accessed at: http://www.foreignlaborcert.doleta.gov/pdf/perm_factsheet.pdf Temporary Programs H-1B: 20,000 more LCAs have been filed this year than at the same point last year, but the actual number of workers on certified LCAs are the same as last year. DOL reports that approximately 6% of LCAs are being denied, primarily for invalid Federal Employer Identification Number (FEIN) or PW source. Chicago is processing about 140 FEIN verifications a day. Processing time for FEIN verification is currently 48 hours after submittal of documents to DOL. H-2B: Overall numbers appear to have dropped, and so far there have been 3,100 H-2B filings this fiscal year. There has been a big surge in filings in the most recent quarter, likely due to the imminent regulatory changes. H-2A: Higher volume of filings than last year (3,600 vs. 3,400). 3,200 have been processed this year. The number of certified positions is up from last year. Prevailing Wage Requests DOL has received 63,359 new requests so far this fiscal year and have issued 69,874 PWDs. There have been 3,775 withdrawals and 1,412 redeterminations. DOL is currently receiving 2,700 new PWD requests each week. H-1B requests are lower than last year and PERM requests are higher. (AILA Note – This determination is based on the type of wage request indicated on the ETA 9141 when submitted.) PWDs are currently taking 60 days for H-1B and PERM cases, 30 days for H-2B. Redeterminations and Center Direct Reviews (CDRs) are within normal times. PWD processing times will be put on iCERT within the next couple of months – this may be added to the PERM processing time tab or they may add a separate tab for PWD times.

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AILA InfoNet Doc. No. 12042544. (Posted 04/25/12)

http://www.foreignlaborcert.doleta.gov/pdf/perm_factsheet.pdf

Problems with iCERT (general) DOL advised that most reported problems with iCERT are due to system problems outside of ETA, such as a network switch or the Verizon system network; it is rare that the application itself is the problem. DOL advised that it monitors iCERT, and there is a trigger which alerts technical staff when there is a problem. Prevailing Wage Forms There was a discussion of some of the problems uploading documents for prevailing wage requests (i.e., uploading private survey pages). DOL advised that it had some issues where uploaded documents could not be opened. In those cases, DOL e-mailed the requestor to ask for the survey data to be resubmitted. If a member requests the use of a private wage survey and DOL does not accept the survey, the wage determination will specify why the survey was rejected. If your survey is rejected without explanation, this is an error and should be reported to DOL. DOL also advised that members should only be uploading information to request ACWIA wages or private surveys, not to argue for specific OES code or wage levels. Also, while there is currently no size limit on files, members are advised to minimize the size of the files they upload, as this can slow down processing. H-2B Regulations The final rule was published on February 21, 2012, effective April 23, 2012. Transition guidance has been posted explaining the roll out for the registry in October 2013 because they need time to implement the system. [AILA Note: On April 23, 2012, DOL published a notice in the Federal Register clarifying that the final rule becomes operative on April 27, 2012, 60 days after the date on which the rule was reported to Congress1. Therefore, although the final rule lists an effective date of April 23, 2012, applications postmarked at midnight on April 26, 2012 or earlier will be adjudicated under the current/old regulations, and applications postmarked April 27, 2012 or later will be adjudicated under the new final rule. In addition, DOL posted FAQs on the new H-2B regulations.2 OFLC noted that now that the H-2B regulation has been published, they have no items on DOL’s regulatory agenda at this time. New Programs/Developments H-2A Ombudsman Bill Beardsley is the head of the new H-2A Ombudsman program. It’s been set up to promote transparency and communication, and can work with all H-2A stakeholders (employers, employees, advocates, attorneys). If problems cannot be resolved with the Chicago NPC, the Ombudsman will try to mediate the issues. DOL will consider expanding this program to H-2B 1 DOL Guidance on Start Date for 2012 H‐2B Program. AILA Doc. No. 12042342. http://www.aila.org/content/default.aspx?docid=39333. 2 DOL Releases New FAQ Document on H‐2B Final Rule. AILA Doc. No. 12041740. http://www.aila.org/content/default.aspx?docid=39282; DOL Releases New FAQ Document on H‐2B Final Rule Implentation. AILA Doc. No. 12042445. http://www.aila.org/content/default.aspx?docid=39347.

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http://www.aila.org/content/fileviewer.aspx?docid=39333&linkid=245737

http://www.aila.org/content/fileviewer.aspx?docid=39333&linkid=245737

http://www.aila.org/content/default.aspx?docid=39333



in the future if it has the resources, but there are no plans to expand it for PERM. Note that the H-2A Ombudsman can only assist in actual case matters, not hypothetical problems. H-2A E-mail System Chicago has been piloting a program to expedite minor deficiencies using e-mail rather than regular mail. DOL may try to move this into H-2B. For PERM, e-mail delivery of documents is only in the discussion phase. As an example, DOL advised that it is exploring using e-mail to deliver PERM audits. iCERT Enhancements There will be an enhancement on the iCERT LCA module to verify the FEIN. If the FEIN is not verified in DOL’s database, iCERT will not permit the LCA to be submitted. The iCERT system will give instructions on how to submit documentation to DOL to have an FEIN verified if this is required. It is expected that this will reduce delays for non-verified FEINs, as this will avoid denials of LCAs for lack of a verified FEIN. [AILA Note: This enhancement has been put in place on iCERT as of April 23, 2012.]3 Other upcoming iCERT enhancements for LCA forms will prevent submission with missing information, will not accept “USA” as a county on the form, and will not allow the LCA to be submitted if the prevailing wage case number is improperly formatted. There will be a reuse function added soon for LCAs. Note that if you reuse an LCA, you need to verify that the wage data is updated to reflect the current wage rates and levels. PERM Form in iCERT There are no plans to implement iCERT for PERM in this fiscal year. They are focusing resources on implementing H-2B and H-2A into iCERT for filing. The existing PERM form and filing platform will continue to be used for the foreseeable future.

TEMPORARY PROGRAM ISSUES

H-1B/LCA

Q1. LCA Denials Due to Use of Alternative Wage Surveys: "Unrecognizable" alternative wage surveys are still resulting in denials of LCAs. DOL has indicated that they recognize this problem and will take this under consideration to work out a solution. Stakeholders would like to know how to make obvious wage surveys recognizable to DOL to avoid unnecessary denials. What is the status of this and has there been any progress on developing solutions? Do you need any other examples beyond what was provided in the list of questions from the Jan. 6th meeting?

DOL indicated during the last meeting that it would consider making a list of survey names and captions available to users. Can you provide an update?

3 New Enhancement to iCERT Visa Portal System. AILA Doc. No. 12042351. http://www.aila.org/content/default.aspx?docid=39342.

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ANS: Some of the problems with rejection of alternative surveys may be because DOL does not have access to the updated surveys, which are only available to actual users who can log in to the website. For example, Radford’s website indicated that a specific survey was last published in 2011, but DOL was unaware that current Radford subscribers could log in to get 2012 Radford wage data.

Note: DOL recently published an FAQ which lists some of the issues with submitting alternative surveys on LCAs and provides suggested language for identifying surveys on the LCA.4

PREVAILING WAGES

Q2. Withdrawal of Pending Redeterminations: Would DOL consider modifying iCERT so that employers can withdraw a Prevailing Wage Redetermination Request without withdrawing the underlying determination (or “case”)? Depending on redetermination processing time, among other factors, an employer may find it more expedient to proceed with the original prevailing wage determination, even if it believes it to be inaccurate.

ANS: DOL will not consider modifying iCERT for this request at this time, but the head of the wage unit advised that members who wish to withdraw a pending redetermination can submit the request through the Help Desk. Be sure to note that you are only requesting withdrawal of the redetermination request, not the entire wage request.

Q3. Short Response Time for PW Requests for Information: When DOL issues a request for information related to a prevailing wage determination (PWD) request, the response time is seven days. The requests are sent out by e-mail and iCERT does not show that such a request has been issued. This can make it difficult for a back-up person to monitor the matter if the contact is out of the office. If a response is not received in the seven-day period, the request will be closed and the employer will have to submit a new PW request. While we understand DOL’s desire to process PW requests expeditiously, we request that the response time be increased to 14 days and/or the issuance of a request for additional information appear on iCERT.

ANS: DOL does not believe that this is a major problem, or that there is any reason to extend the due date for RFIs. DOL noted that on average, it receives the response to the RFI within 3.5 days of issuing the RFI, suggesting that most employers are able to meet the deadline. DOL also noted that it does not generally deny the wage request if the RFI is not submitted – it will issue an OES wage if alternate wage data is unacceptable. DOL also indicated that it is generally not denying after RFI if the response comes in on the 8th day, but this is case-by-case.

Q4. BLS National Compensation Survey: DOL has rejected a BLS National Compensation survey, stating the following: “By statute the NPWC uses four wage levels when OES is the wage source. Any other presentation of the OES wage data cannot be accepted for PWD purposes. Therefore, the OES wage is being issued.” [Case No.XXXXXXX]. In many cases, BLS surveys have more than four levels. Can an employer use a BLS survey that meets all of

4 DOL Releases New FAQ on H‐1B, H‐1B1 and E‐3 Programs. AILA Doc. No. 12032480. http://www.aila.org/content/default.aspx?docid=39082.

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the regulatory requirements for an alternative survey? Is the answer different based on the number of levels available in the BLS survey?

ANS: The BLS National Compensation Survey may be acceptable for prevailing wage purposes, provided the submitted request includes the necessary level of detail and matches the proper geographic area. They will not accept NCS wages under “catchall” categories with a lack of description such as “All other occupations.”

Q5. PWDs with a Combination of Occupations: Recently, DOL has issued PWDs with a combination of occupations, a practice that was very rare in the past. The determinations have included a combination of two occupations where the job duties clearly overlap. For example, (1) Operations Research Analyst (SOC Code 15-2031) and Financial Analyst (13-2051)[Case No. XXXXXXX]; (2) Logistician (SOC Code 13-1081) and Management Analyst (SOC Code 13-1111) [Case No. XXXXXXX]; or (3) Accountants and Auditors (SOC Code 13-2011) and Computer Systems Analysts (SOC Code 15-1121)[Case No. XXXXXXX].

Given the requirement that an employer show business necessity for a combination of occupations, it seems that DOL should reserve such determinations for cases in which the duties do not fall within one occupational classification, rather than cases in which some of the duties could fall within more than one classification. Has DOL changed its approach to combination of occupation determinations?

ANS: DOL has not varied in the number of combination of occupation PWDs issued in the last 18 months, so it does not see an increase in these determinations. Per DOL, in only 2.5% of PWD requests do they determine that there is a combination of occupations. The fact that the PWD says something is a combination of occupations does not mandate the need to answer in the affirmative the existence of a combination of duties on the 9089.

Q6. Problems with Alternate Wage Surveys and PW requests. Members have reported frequent rejections of alternate wage surveys that have been submitted to the prevailing wage unit in support of the ETA 9141. (Some examples were provided to DOL prior to the meeting, but were not included on the agenda. Per DOL, as two of the examples were in reconsideration, they could not be discussed.)

We note that DOL has never required in the past that a submitted wage survey or other prevailing wage source be an exact, job-duty to job-duty match to the job on the ETA 9141. By demanding that level of specificity, DOL all but removes the ability to use private surveys as a prevailing wage source, as most surveys use broad occupational descriptions. This appears to be contrary to the spirit of the regulations, where DOL has permitted the use of private wage surveys for many years, all using broad job descriptions. Moreover, we note that DOL itself relies on broad occupational descriptions in using the SOC codes to issue PWDs. Therefore, DOL appears to be rejecting private wage surveys for failing to meet a standard that the Department itself does not meet. Can guidance be provided to avoid these types of survey rejections? How can members notify DOL of these types of problems – is reconsideration the only option?

ANS: DOL does not have a policy that says that the survey and PWD duties must match exactly. Most surveys are rejected because only part of the required survey information is

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submitted, e.g., wage page but not methodology or other descriptive information regarding the alternate wage source. In submitting alternate wage surveys, members should upload sufficient supporting documents to explain the methodology of the survey and why the survey is appropriate. Members may want to include an explanation why the survey is an appropriate match to the occupation on the PW request.

More generally, DOL advised that it accepts the submitted alternate wage survey source in 74% of the PW requests that ask to use an alternate survey. For those cases where the employer’s wage data is not accepted, the OES wage is usually issued, the PWR is not denied.

Q7. To what extent do the ETA 9141 and the ETA 9089 have to mirror each other? For example, if the ETA 9089 did not list one of several job duties listed on the ETA 9141, would this be cause for a denial of the ETA 9089? Members report denials, after audit, which state, "The information listed in ETA 9089 for Section H does not match the information contained on the PWD submitted by the employer." Please clarify the extent to which each field in the ETA 9141 must match each field in Section H [and other sections] of the ETA 9089.

ANS: There has to be an exact match. For example, if the ETA 9141 asks for 3 years of experience, the ETA 9089 cannot ask for 2 years experience. Even if the reduction in experience would not lead to a higher wage level, employers are required to have a PWD for the occupation on the submitted ETA 9089. While some small variation in certain special skills may be acceptable (i.e., ETA 9141 lists special requirements of “C, C++, Java, J2EE,” ETA 9089 requires “C++, Java and J2EE”), this is case-by-case.

Q8. Prevailing Wages for Medical School Professors. Professor positions at medical or dental schools always have both clinical and teaching responsibilities. However, the clinical component is typically the predominant one, and for the clinical component the professors need to be licensed and often board certified. Since there is no ACWIA code for the clinical portions of the position, the NPWC assigns the Health Specialties wage, but uses the appropriate 29 class code. The PWD routinely comes back with a statement like the following examples:

The occupation 29-1063 - Internist does not currently have an ACWIA Higher Education wage available through OES; the wage for 25-1071 – Health Specialties Teachers, Postsecondary was used as the duties described are a combination of the occupations.

The occupation 29-1021.00 - Dentists, General does not currently have an ACWIA Higher Education wage available through OES; the wage for 25-1071.00 - Health Specialties Teachers, Postsecondary was used as the duties described are a combination of the occupations.

The problem is that although Clinical Professor is one of the suggested job titles for Health Specialties Teachers in the O*Net, when the PW is assigned, the NPWC seems to add a level to the Health Specialties wage. It is unclear whether it is adding the level because it has determined it is a combination of occupations, or for the license required for the clinical portion.

However, the duties are not a combination of occupations. The duties are those normally found in every case for this type of position, and if they are using the Health Specialties category for a Clinical Position, the license is inherent in the job.

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Also, is there a reason why the NPWC can’t use the clinical wage if there is no ACWIA wage available?

ANS: A discussion ensued about the meaning of combination of occupations under the regulations. It was generally agreed at the meeting, and concurred by Harry Sheinfeld, that a Clinical Professor at a medical or dental school is not a combination of occupations. If a PWD continues to be issued with an extra level for combination of occupations, it should be appealed to the Center Director. With regard to the ACWIA wage issue, DOL is required to use only the ACWIA wage for ACWIA employers.

PERM

GENERAL

Q9. PERM Pilot Risk Management Model: The November 2011 DOL OIG report indicated that ETA was piloting a “risk management model” in the PERM program to help allocate resources to adjudications5. Has that model been implemented to the entire PERM program? If not, is there a schedule for such implementation?

ANS: DOL is shifting focus to increase audits and Supervised Recruitment (SR) cases. Its first goal was to get the backlog down, and it is now setting a new goal for program integrity, which is that 30% of the cases will be part of the integrity check (i.e., subject to audit and/or SR). This shift started this program year (October 2011).

AUDITS

Q10. PERM Audits Increase: Some employers are reporting significantly high rate of audits of PERM cases (i.e., 80% vs. 33% stated at Jan. meeting). Is there a volume trigger, or what exactly could explain the extremely high rate of audits that some employers are experiencing?

ANS: See answer to previous question re: program change in number of audits. DOL indicated that there are no specific audit triggers but that it does give more scrutiny to cases where the educational requirement is less than a bachelor’s degree. Brian Pasternak read off some examples of recent PERM filings where there was no educational requirement, but a high salary was offered. (e.g., Software Engineer: no degree and 3 years exp., $100K salary).

Q11. Roving Employees. Members have recently begun receiving PERM audit notices that ask for an itinerary, list of clients, or specific locations where an employee may be working. These notices appear to be directed at consultant or similar positions where the employee may work at various unanticipated worksites, or may simply reside far from the listed location of employment. We note that for many consulting companies (and for roving positions at other types of employers), the employer does not know all the locations where an employee will be working, and in previous meetings, it was agreed that it was sufficient to put the headquarters address and add “other unanticipated worksites” or a similar phrase. We note that this was the guidance

5 2011 Top Management Challenges Facing DOL. AILA Doc. No. 11181121. http://www.aila.org/content/default.aspx?docid=37690.

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provided in the 1994 Barbara Farmer memo,6 which stated that the employer could recruit for consultant or roving employees through the employer’s main or head office, and also note that the employee would work at various unanticipated worksites. This language and means of recruitment was also affirmed by BALCA in Paradigm Infotech, 2007-INA-00003-06 (June 15, 2007) and Amsol, 2008-INA-00112 (Sept. 3, 2009), where the consulting company employers had recruited through their main offices for consultant roles. BALCA reversed these denials, and found that this type of recruitment, where the specific worksites might not yet be known, was appropriate.

Employers may not know the employee’s likely work site locations for more than a few months into the future, making it all but impossible to provide an itinerary. How should employers describe a position where the employee may work at various client sites for limited periods of time? Please confirm or clarify that in the case of the roving employee, the following rules should continue to be followed: (1) The posting and recruitment efforts should be in the geographic area of the employer’s headquarters or principal place of business and should include the nature of travel/relocation of the position; (2) The PWD should list all known worksite locations at the time the PWD request is filed. Any other clarifications on information required for these types of employees would be appreciated. (Sample audit notices with this issue: A-XXXXXXX, A-XXXXXXX, A-XXXXXXX)

ANS: DOL stated that there has been no change in policy for roving employees. As before, the current policy guidance for posting these types of positions is at the employer’s HQ office. DOL noted that the PW request should list all known worksites. The 9089 should list all worksites on the form itself, not on an addendum. At present, the Barbara Farmer memo is still in effect, and is good guidance (see footnote 6). If the employer does not know exactly where someone will be working beyond what it has listed, the response should explain what information the employer has available at the time, and should tell DOL how the person will spend his/her time.

RECRUITMENT ISSUES

Q12. Job Order Documentation for PERM Cases. In light of the recent en banc decision in A Cut Above Ceramic Tile, 2010-PERM-00224 (Mar. 8, 2012), will audit notices be revised to reflect that submitting a copy of the SWA job order is optional, and not required documentation under the regulations? Has the Atlanta NPC been instructed that employers are not required to submit a copy of the SWA job order in response to PERM audits?

In addition, since a copy of the SWA order is not “required” documentation, will the CO apply a more flexible standard of review, such as harmless error, when considering SWA job orders that have already been submitted in response to PERM audits? We note that AILA has made several reports to DOL regarding problems with SWA job orders that are outside the employer’s control, such as the Texas SWA closing the job order to all candidates other than veterans, SWAs removing the employer’s name and direct contact information from the job order, SWAs that revise the job order content after it has been submitted for posting, and SWAs that revised job orders due to a migration of data (Illinois). Given that a copy of the job order is not required documentation under the regulations, denying a PERM application due to a deficiency in a 6 Policy Guidance on Alien Labor Cert. Issues. AILA InfoNet Doc. No. 94052390. http://www.aila.org/content/default.aspx?docid=3836.

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document that the employer was not required to maintain, and the CO was not permitted to require, appears fundamentally unfair, and we would ask that the CO not consider the job order documentation when reviewing pending audit cases.

Also, will there be any expedited review of PERM reconsideration requests and/or pending appeals where the sole issue for denial was lack of a copy of the SWA job order? How can members who have cases that fit these criteria notify DOL and/or BALCA that their application is eligible for certification under the A Cut Above guidance?

ANS: If the job order has been provided in response to an audit, DOL will evaluate the job order and deny the application if it is not compliant. Although DOL can no longer ask for a copy of the job order, if it is provided, nothing prevents DOL from denying the case if there is a defect in the job order. Moreover, nothing prevents DOL from requesting the job order directly from the SWA. (DOL did not address when/if the audit notice might be revised to remove the request for the job order copy).

Members can file Motions to Reconsider in the Government Error Queue if they believe it is warranted, but there will be no special process set up at this time.

Q13. Telecommuters. We continue to have numerous questions from members regarding how to place recruitment for telecommuters. DOL previously stated that it was preparing an FAQ on the telecommuter issue, but this has not yet been published. We acknowledge that we have asked some of these questions previously, but many of the prior answers related to the new PERM form. We would appreciate your analysis of the following situations:

a. What is the work site for a telecommuter who performs all work from a computer at home or another location, but is not physically in the office and is remotely connected to the employer? Is the “work site” the office of the employer to which he reports, the employer’s headquarters office, the employee’s home, or some other location?

b. Do these answers differ if the employee works part of the time in his/her home and part of the time in an office?

c. Where should the employer obtain the prevailing wage and place the job order in these scenarios?

ANS: As with roving employees, DOL responded that there was no change in policy in this area. Responses to specific examples were not provided.

SUPERVISED RECRUITMENT

AILA Note: During the meeting, there was a general discussion of issues and problems relating to supervised recruitment, such as unclear guidance from the SR unit, non response to e-mails asking for clarification, and instructions to use websites that did not appear to be appropriate for the occupation. DOL advised that it is looking at how the process can be improved, and that we may see changes in letters and communications. AILA and other stakeholders offered to provide DOL with feedback and suggestions on how SR correspondence could be clarified and how the process could be improved.

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Q14. Placement of Newspaper Advertisements for Supervised Recruitment (SR) Cases. Per 20 CFR §656.21(b), “If placed in a newspaper of general circulation, the advertisement must be published for 3 consecutive days, one of which must be a Sunday.” However, many newspapers no longer publish classified advertisements on a daily basis (e.g. the San Jose Mercury News, San Francisco Chronicle, and Chicago Tribune, among others). The solution to the lack of consecutive daily ads for many SR cases has been to require employers to run three consecutive Sunday advertisements. This is both contrary to the language in the regulation requiring three “consecutive days,” and often prohibitively expensive for employers, due to the large size of SR advertisements, which must include significantly more detail and information than standard PERM advertisements. Employers have reported that the cost of placing three Sunday SR advertisements can cost as much as $15,000.

Rather than requiring three Sunday advertisements for SR cases, we suggest that if the appropriate newspaper of general circulation does not run daily advertisements, that the CO use his discretion and only require one Sunday advertisement. This option would facilitate the scheduling of PERM recruitment for the NPC, as employers would only need to place a single print advertisement, which would make it easier for DOL to monitor and track resumes, as well as schedule the recruitment period for each SR case

Alternatively, if the appropriate newspaper does not run print advertisements on consecutive days, we suggest that the CO permit placement of an online advertisement with the appropriate newspaper’s website.

ANS: DOL is aware of the changes in publishing schedules, and is investigating how recruitment guidance might be revised to address this.

Q15. Approval of Abbreviated or Shorter Advertisements for SR Cases. The NPC instructions for drafting an SR ad for approval state that the advertisement must “describe the job opportunity, including the job title, duties to be performed, and work schedule.” This language is more specific than what is required by the regulation, which states that the advertisement must “describe the job opportunity” and “[s]ummarize the employer's minimum job requirements, which cannot exceed any of the requirements entered on the application form by the employer.” The regulations clearly intend that not every job duty or requirement appear in the SR advertisement. Employers may have submitted an extremely detailed job description on the ETA 9089, but they did not have an expectation that they would be required to publish a print advertisement that includes each and every job duty and requirement.

We suggest that the SR instructions for drafting an advertisement for approval be revised to mirror the language of the regulation, and state that the ad must describe the job opportunity and summarize the employer’s minimum requirements, provided that these do not exceed any of the requirements entered on the application. We also recommend that the instructions clarify that abbreviations are permitted. This would substantially reduce the costs of recruitment.

ANS: DOL affirmed that a shorter or summary ad may be acceptable, but the employer must request this when it submits the original draft for review and approval – once DOL approves an ad, it is unlikely DOL will approve a new version of the advertisement.

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Q16. SR Orders which Require the Employer to Obtain a New PWD. Some employers have received SR orders which require a new PWD based on a private survey (i.e., the new PWD was not included in the instructions from the CO). PW requests normally take 60 days, but employers are only given 30 days to submit the proposed advertisement for approval, which means that the new PWD does not arrive until after the deadline to submit the advertisement. Can recruitment be placed on hold until the new PWD is issued, or can a 60 day extension at least be granted to obtain a new PWD?

ANS: DOL advised that if the SR order asks for a new PWD, this is grounds for an extension of time. However, the extension request should be submitted as early as possible. [At the AILA Spring Conference the following day, DOL also confirmed that the employer can dispute the PWD when in SR. If employer were to file a request for reconsideration of a PWD, additional requests for extension would be needed. Recruitment under SR cannot begin until the PW has been determined.]

Q17. Problems with SR Instructions for Placement of Recruitment. When the NPC issues the order to start SR, the employer must begin placement within 15 days of the date of the letter. However, many employer have questions about the directions given in the SR order, and will contact the SR unit for clarification. Some recent examples of problems with SR recruitment instructions include:

a. Job location on ETA 9089 falls in Santa Clara County (appropriate newspaper is San Jose Mercury News). SR instructions advise to place advertisements in San Francisco Chronicle (San Francisco County). Attorney contacted SR unit to confirm which publication to use, but did not receive a response for 15 days. Attorney proceeded with placing ads in San Francisco Chronicle (as originally directed) to meet the required deadline for placement, even though it was not the most appropriate publication. Will the employer be held harmless for the use of the newspaper that was directed by the SR unit?

b. SR order directed employer to publish its approved draft advertisement on www.engineeringjobs.com, and provide proof of publication for seven consecutive days. No newspaper or other journal was specified for placement of the advertisement. However, the website cited in the SR instruction letter does not publish individual advertisements – employers can upload a link to the employer’s website career page. It is impossible to provide a print out of the approved advertisement on the website, as the website does not offer that type of advertisement placement. In addition, this particular instruction did not specify any print publication – it is unclear if this was deliberate, or was an oversight on the part of the SR analyst. SR processing has been contacted for clarification on both these issues. (A-XXXXX)

ANS: These examples were not addressed directly, but this was generally included in the discussion of the SR process and how to improve the process.

Q18. Clarification on how certain websites have been determined to be “appropriate” sources of recruitment for SR cases would be appreciated. Does DOL have a list of approved websites for certain occupational categories? If yes, can DOL share the list? More importantly, if the website that the employer is instructed to use does not appear to be appropriate for the occupation, how can this be reported to the SR processing team?

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We understand that DOL uses www.mondotimes as a reference in determining what DOL determines to be the "appropriate" newspaper. Please confirm if this is correct and in what manner DOL uses this website. What other sources does the DOL use in determining the appropriate newspaper and/or websites to use for recruitment?

ANS: Not addressed in meeting.

Q19. Business Necessity and SR recruitment: One of the bullet points under "Required Content for Advertisements" in the SR letter is: "State the minimum education, training, and experience requirements, which must be normal to the job opportunity and not contain unduly restrictive requirements...." The instructions do not advise that an employer is permitted to have requirements that exceed the normal requirements, provided they can be justified on the basis of business necessity. Can the SR instructions be revised to clarify that any requirements that exceed the normal requirements for the job must be justified by business necessity?

If documentation of business necessity was addressed in the employer’s audit response (prior to receipt of the SR letter), can we assume that the requirements have been deemed acceptable to DOL?

ANS: If case is put into SR after audit, and the audit response included the employer’s business necessity justification, DOL has accepted the employer’s business necessity. If DOL did not accept the audit response on business necessity, it would deny the case, not put into SR.

AILA noted at the meeting that some SR cases do not go through audit first, and the instructions do not advise those employers that business necessity of requirements may be available. DOL agreed, and advised that it will review the instruction in the notice.

Q20. Multiple SR Advertisements in One Display Advertisement: At a Jan. 6th meeting there was a question raised whether employers can include more than one SR advertisement, assuming all technical requirements have been met, in a single display advertisement. DOL said it does not think regulations preclude this, but will provide clarification on this issue. Can you please inform us whether there is any new guidance on this topic?

Q21. Consolidation of Identical SR Cases: DOL indicated at the Jan. 6th meeting that to extent the cases are identical, it makes sense to consolidate recruitment for SR cases that are identical, and it would look into publishing a standard that can be followed to consolidate recruitment for SR. Has such a standard been drafted, or what is the status of this issue?


FOLLOW-UP ITEMS

Q22. DOL indicated previously that it was considering moving forward with a stakeholder case resolution mechanism. Can you provide an update?


Q23. Kellogg Denials. At our January meeting, DOL confirmed that denials of PERM cases after audit because the recruitment (job order, print ads, and/or online recruitment) did not

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include “any suitable combination of education/training and/or experience is acceptable” (i.e., Kellogg language) were in error. Members have continued to receive these types of denials throughout January and February. Can you confirm that these denials were in error? Has the Atlanta NPC been given instructions to no longer deny cases because Kellogg language is missing in the recruitment?

ANS: DOL advised that these denials should no longer be issued (none should have been issued since February), and they confirmed that these denials are considered government error. [AILA Note: If members receive an erroneous Kellogg denial, please send it to AILA at [email protected]. Members will also need to file a request for reconsideration under government error, but the reports assist in notifying the OFLC team of the problem].

Q24. SOC Codes and ETA 9089. New SOC codes are still not recognized as valid when entered on PERM forms. Members continue to report that when they have received PWDs that use the new SOC wage codes, the PERM filing website does not recognize the new SOC codes as valid. Examples of denials issued since last meeting: ETA Case No. A-XXXXXXX (Denial issued January 20, 2012); ETA Case No: A-XXXXXXX (Denial issued February 17, 2012)] [Example of denial not reopened in government error queue: ETA Case No. A-XXXXXXX, request for reconsideration filed January 9, 2012]

Do you have any update on when this will be corrected in the PERM filing system?

ANS: New SOC codes should be implemented in the PERM filing system in the next few weeks. [AILA note: The new SOC codes have been implemented in the PERM filing system.]

Q25. Microsoft BALCA case and travel language. This dovetails to the recent BALCA decision from 2/29 regarding the Microsoft case where the issue on travel language was decided. What steps does DOL take to ensure adjudicators will apply recent BALCA decisions?

ANS: Not addressed at meeting. [AILA Note: DOL generally does not discuss any issues relating to personnel management and adjudication processes.]

Q26. FAQ on ACWIA Wages: In the November 2011 Matter of Children's Hospital case, BALCA found that DOL erred in not using ACWIA wages. DOL indicated that an FAQ was being drafted to clarify this issue. Can you please inform us of the status of an updated FAQ?

ANS: DOL answered this would be coming “soon.”

Q27. Notification of U.S. Applicants. Members continue to report receiving audit notices that request documentation of how U.S. applicants were informed that they were not qualified for the sponsored PERM position. This is not required, and DOL has indicated at previous stakeholder meetings that audit notices would be revised to reflect that the employer is not required to provide documentation of how applicants were advised that they were not qualified. When will the audit notices be revised to clarify this? Can an FAQ be posted to confirm that this is not necessary?

ANS: Not discussed at meeting.

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mailto:[email protected]

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Q28. SR recruitment instructions. At our January meeting, we discussed the language in the SR recruitment instructions, and that there was some confusion regarding the language “Not later than 15 days after the last placed advertisement, the employer must provide the Certifying Officer with the recruitment schedule.” Members were confused if this meant that the employer must advise the CO of the recruitment scheduled within 15 days of ordering the placement of the advertisement, or within 15 days after the last placed advertisement is run. Clarification of this language – either by revising the instructions or by issuing other guidance, would be appreciated.

ANS: DOL responded that the intent of the notice was for advising the CO within 15 days of ordering the placement of the advertisement, not within 15 days after the advertisement is published. [AILA Note: The 15 day response requirement was discussed at length in the meeting, as the SR regulation seems to indicate that the CO should give 30 days for a response to be made to any notice. AILA and other stakeholders also noted that if a longer time period was given to place the recruitment, this would give more time to get issues clarified with the SR team before starting recruitment.]


Attendees: DOL: OFLC: Brian Pasternak, Elissa McGovern ... · PDF fileDOL/OFLC...

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Transcript of Attendees: DOL: OFLC: Brian Pasternak, Elissa McGovern ... · PDF fileDOL/OFLC...