News From Ross, Silverman & Levy LLP

Many of our clients have had a number of questions about the PERM labor certification process, and the effects of the flagging economy on this process. This edition's Q&A aims to address several of these and other common PERM-related questions.

Additionally, we want to ensure that you are aware of a function of the Department of Labor's (DOL's) new iCert web portal for Labor Condition Application processing. In the future, DOL intends to expand the use of this website to include PERM applications, although the expansion date has been continually delayed and is now set for sometime in 2010. At present, the iCert portal only provides current reported PERM processing times on the "Performance Information" tab. DOL indicates that they are currently processing PERM cases that were filed in November 2008, and responses to audited cases that were filed in September 2007.

Q: If my organization wants to move forward with a PERM application for an employee at this time, how might the economic situation impact the application process?

A: The current economic situation influences the PERM labor certification process in a number of ways. As we discussed in the April Newsletter, companies that have had layoffs in the area of intended employment are prohibited from filing PERM applications for six months unless the company notifies all potentially qualified laid off U.S. workers of the job opportunity listed on the PERM application, considers them for the position, and can document the results of the notification. The most notable impact, however, is the likelihood that the company will receive a significant volume of resumes from applicants. We are seeing an unprecedented increase in resumes from applicants across all industries and occupations, including those for positions that employers had difficultly filling less than a year ago, such as jobs in research and healthcare. Consequently, there is a greater likelihood that the recruitment will result in a qualified applicant, in which event the labor certification effort will fail. Before a company commits to the PERM process, both the company and employee should be aware of this possibility.

Further, a practical effect of this reality is an increase in the amount of time and effort required to vet through all of the resumes that are received, ascertain each applicant's qualifications, conduct phone screenings and interviews, and check references. Significantly, this falls on the shoulders not only of human resources personnel, but also of hiring managers, as they are often in the best position to determine and evaluate the applicant's qualifications and conduct any necessary interviews. With companies and staff already under pressure financially and looking at wage cuts, reduced hours or layoffs, this is a concerning but unavoidable additional burden in PERM cases which should be anticipated and expected in committing to the PERM process.

Q: What initial steps should an employer take if it receives an application during the PERM advertising campaign from someone who appears to be qualified?

A: It is very important to keep in mind that an applicant cannot be rejected based on a lack of qualifications that are not listed as minimum requirements in the recruitment materials and advertisements, and subsequently listed on the PERM labor certification application. Therefore, in the first instance, it is very important to clearly and specifically define the minimum requirements, considering those skills or abilities that are essential in order to perform the job duties. There is no need to list skills that most people with a given degree or within a given field will have and it is often prudent to provide specific, non-generic requirements.

When an application arrives, an employer initially should review the resume and cover letter to ascertain the applicant's qualifications. If an applicant states that he or she is not a U.S. worker, then the applicant does not have to be considered. If an applicant appears to meet the minimum requirements, the applicant must be interviewed, at least by telephone, to confirm if he or she in fact qualifies. Potentially qualified applicants must be contacted within 14 days of receipt of the resume.

Importantly, DOL requires an employer to consider applicants with any suitable combination of education, training or experience. This means that if any applicant has several years of experience and meets most of the qualifications, then he or she should still be interviewed to determine if he or she can perform the job duties without significant training. If it would take a short period of training to "get up to speed" on a particular requirement, then the applicant cannot be rejected for failing to meet that requirement. Likewise, if an applicant has significant related experience and only lacks the required degree, he or she must be considered.

Q: As a follow-up to the previous question, I understand that the applicant review process cannot be the same as our standard process, in the sense that we cannot disqualify an applicant simply because he or she is not the best-qualified individual for the position, but rather must consider all potentially-qualified applicants. If after some initial screening the applicant appears to satisfy the educational and experience requirements for the position, what other factors might I assess to determine whether an applicant is able to fill the position?

A: If an applicant is interviewed and appears to meet the minimum education and experience requirements, then you may consider other legimate business factors when determining whether or not the applicant is qualified for the position. The following inherent job requirements not stated on the form have been found by the Department of Labor to be legitimate business factors:

Note that the above is not meant to serve as an all-inclusive list of legitimate business reasons to disqualify an applicant.

An employer should also follow its normal recruitment practices in terms of conducting phone and/or in person interviews (meaning the same questions that are typically asked should be asked in PERM-related interviews). If after conducting an initial screening and/or interview and checking references, an applicant meets all stated minimum requirements and there are no legitimate business factors which would disqualify the applicant, the PERM application cannot be filed, as the employer's recruitment will have resulted in a qualified U.S. worker. This does not mean that the foreign national employee has to be laid off and the U.S. worker hired in his or her place. It simply means that you cannot proceed with filing the PERM application.

Q: If we receive a qualified applicant in response to PERM advertising and cannot proceed, will this impact any future nonimmigrant visa applications for the employee?

A: Yes, it may. H-1B nonimmigrant employees typically are eligible for a maximum of six years of H-1B status. An H-1B worker can qualify for visa extensions beyond the initial six years if a PERM application or I-140 immigrant visa petition is filed on his or her behalf at least 365 days prior to the end of the individual's initial six years in H-1B status, i.e. before the end of the 5th year of H-1B status. If, however, the PERM recruitment elicits a qualified applicant and the PERM application cannot be filed prior to that deadline, the employee may not be eligible for additional H-1B extensions.

In that event, should the employer thereafter wait a reasonable period (often considered to be around six months) before advertising again for the relevant position, and there are no qualified applicants at that time, the PERM case can be filed and certified, and an I-140 petition thereafter can be filed. Once the I-140 petition is approved, if an immigrant visa number is not available to the employee due to visa retrogression, and regardless of whether the labor certification was filed before the end of the 5th year of H-1B status, the employee will be eligible for an additional three years in H-1B status, even if his or her previous H-1B status has already expired.

Notably, the law that allows for extensions beyond the six year limit only pertains to H-1B employees, not to employees in L-1, TN, or other work-authorized status. This means that employees in another nonimmigrant status, particularly L-1 employees, should be considered for a possible change to H-1B status well before their final allowable year working in the U.S., so that they can potentially qualify for continued work authorization as they go through the permanent residence process.

Q: If we have a pending PERM application and the employee leaves the company, can we withdraw the application?

A: Yes, you may withdraw the PERM application at any time while it is pending. However, if an Audit Notification is issued, you must first respond to the audit before you can withdraw. In making the decision to withdraw a PERM application for an employee who leaves the company, either voluntarily or due to a reduction in workforce, please remember that the PERM application is based on an offer of permanent employment once the foreign national is granted U.S. permanent residence. Therefore, if there is any possibility that the employee will return to the company in the future, i.e. intent by the company and by the employee to take up the offered job at a later date, then you can allow the PERM case to proceed, and once approved can file the I-140 immigrant petition within the certified PERM validity period (i.e. 6 months from certification), so as not to forfeit the expenditure and work already completed on the case.

If you have an immigration question which you would like to see included in a future newsletter, please send it to Sally Penney at [email protected].