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AVOIDING PERM MINEFIELDS Robin Dana O’Donoghue Bennett Savitz David Ware

AVOIDING PERM MINEFIELDS Robin Dana O’Donoghue Bennett Savitz David Ware. Issues Settled at the 12/12/2013 AILA DOL Liaison Meeting ( AILA Doc. No. 14011449) :. “Engineering Degree” Requirement Submitting Job Orders Elimination of Business Necessity boilerplate language from Audit Template.

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AVOIDING PERM MINEFIELDS Robin Dana O’Donoghue Bennett Savitz David Ware

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  1. AVOIDING PERM MINEFIELDSRobin Dana O’DonoghueBennett SavitzDavid Ware

  2. Issues Settled at the 12/12/2013 AILA DOL Liaison Meeting(AILA Doc. No. 14011449): “Engineering Degree” Requirement Submitting Job Orders Elimination of Business Necessity boilerplate language from Audit Template

  3. Related Resources – See AILA DOL Liaison Committee’s 2012 Research Tools Advisory(AILA Doc. No. 12121342): Resources on AILA InfoNet: Board of Alien Labor Certification Appeals (BALCA) Cases & Decisions: http://www.aila.org/content/default.aspx?docid=9511 BALCA Decisions dating back to 1993 DOL Cases & Decisions, Other than BALCA: http://www.aila.org/content/default.aspx?docid=11197 Decisions dating back to 2002 DOL Agency & Liaison Information: http://www.aila.org/content/default.aspx?docid=6732 Regulations, Agency Guidance & News, Liaison Activity, State Job Order Processes DOL Resource: Office of Administrative Law Judges Immigration Collection: http://www.oalj.dol.gov/libina.htm The DOL’s collection of statutes, regulations, reference materials, and case decisions

  4. Notice of Filing Issues Related BALCA Cases: Aero Parts Mgmt., 2011-PER-00704 (May 25, 2012) MT Heating, 2011-PER-01250 (May 30, 2012) Saints Inc. & Piedmont Dairies, Inc., 2011-PER-00927 (Jun. 13, 2012) Architectural Stone Accents, 2011-PER-02719 (Jul. 3, 2013) Seven Oaks Landscapes, 2011-PER-02628 (Jul. 26, 2013) Redyk Travel, 2011-PER-02738 (Aug. 8, 2013) Oneplanetweb, Inc., 2011-PER-00999 (Aug. 27, 2013)

  5. Notice of Filing Issues Topics of Discussion: Include all job duties and requirements in the Notice of Filing (NOF), even though minor omissions may be excused. Use NOF as guiding document for the case. Be consistent, don’t add extra information to the NOF. Include dates and location posted the NOF, even though one may be able to provide other documentation as proof in an audit. Have original NOF signed and returned as soon as 10 days are over. Ask to see internal media posting right away, instruct client to be sure it does not export to external media, and to check to be sure.

  6. “Travel” Issues—BALCA Cases • Travel with fixed worksite • Masterex Tech., 2011-PER-02086 (July 30, 2013) • KPMG, 2011-PER-02673, -02695 (January 23, 2013) • Roving (current undetermined worksites) • Software Prof Serv, 2011-PER-02299 (Sept 10, 2013) • Keane, 2010-PER-00749 (May 24, 2011) • Estisbew Tech Group, 2010-PER-01266 (Feb 21, 2012)

  7. “Travel” Issues—BALCA Cases • Future transfers (to determined or undetermined sites) • Vedicsoft Solutions, 2010-PER-01251 (Feb 23, 2012) • Oxford Systems, 1997-INA-0387 (June 23, 1999) • Telecommuting • JDA Software, 2011-PER-02661 (Sept 27, 2012)

  8. “Travel” Issues • Topics of Discussion • Increase in wage level? • Place of advertisement? • Place of posting? • Verbiage in ads, posting? • Transfers: If indicated in PERM, does this protect PERM for I-140/AOS purposes if Ben transferred?

  9. Kellogg Language Issues Related BALCA Cases: Kennametal, 2010-PER-01512 (Mar. 27, 2012) Goldman Sachs, 2011-PER-01064 (Jun. 8, 2012) JP Morgan Chase & Co., 2011-PER-01000 (Jul. 16, 2012) Select Int'l, 2011-PER-01478 (Sep. 9, 2012)

  10. Kellogg Codified and Defined 20 CFR 656.17(h)(4)(ii) states: • If the beneficiary already is employed by the employer AND does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer’s alternative requirements, • Then, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.

  11. Kellogg Language Issues Topics of Discussion: Don’t use Kellogg language Don’t trigger Kellogg unnecessarily If Kellogg applies, insist on at least phone screenings

  12. Applicant Evaluation and Contact Issues Related BALCA Cases: JP Morgan Chase, 2011-PER-00635 (Mar. 27, 2012) W. Alex Choi, CPA, PC, 2011-PER-02916 (Sep. 26, 2013) Twins, Inc., d/b/a Twins Hardware Floors, 2012-PER-00392 (Nov. 1, 2013)

  13. Applicant Evaluation and Contact Issues Topics of Discussion: How may an employer determine whether an applicant is a U.S. worker? When is an employer allowed to reject an applicant based solely on the resume? If the requirements are not unduly restrictive, may an employer reject an applicant if the resume shows clearly that the applicant does not meet the minimum requirements without further inquiry? When should the employer be instructed to inquire further into the qualifications of the applicant? What if the requirements are such that the applicant may be able to be trained during a reasonable period of time? How should employers contact applicants? What should an employer do if it is unable to confirm whether attempts to contact applicants were successful?

  14. Section K Issues—BALCA Cases • American Showa, 2011-PER-02402 (Jan 24, 2014) • My Plumber, 2011-PER-02712 (July 3, 2013) • South Island Pub Serv Dist, 2011-PER-01509 (Sept 19, 2012)

  15. Section K • Topics of Discussion • What is DOL’s current “position” on Section K? • What is the current Section K “trend”? • What is the intent of the language at the beginning of Section K? • What should be included in Section K? • If a qualification does not fit chronologically or within employment history, where should it go? • Is AILA Liaison working on Section K issues?

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