Maryland Bar Bulletin
Publications : Bar Bulletin : August 2013


Amidst all the debate and discussion in Congress and the media on a path to citizenship, it is important to not forget the many people legally working their way through the current U.S. immigration system. 

Employment-based immigrants, that is those with a job offer from a U.S. employer, typically follow a three-step process. They will start with a process called Labor Certification (LC) based on § 212(a)(5)(A) of the Immigration and Nationality Act and Part 656 of Title 20 of the Code of Federal Regulations (CFR). An LC is filed using the U.S. Department of Labor’s (DOL) ETA Form 9089, the Application for Permanent Employment Certification. (This process is also commonly referred to as “PERM” because the mechanism used by DOL to adjudicate the LC is the Program Electronic Review Management.) 20 CFR § 656.2(b) requires an employer to recruit for a minimally qualified U.S. worker, to establish none can be found. Once the LC is approved, the sponsor can proceed with the Form I-140 Petition for the worker to U.S Citizenship and Immigration Services. To ultimately obtain Lawful Permanent Resident (or Green Card) status, the sponsored worker must proceed with the final stage wherein this is granted.

The LC process rules are laid out in great detail throughout 20 CFR Part 656. Besides regulations, DOL uses numerous Frequently Asked Questions (FAQs) at CFR’s Part 656.17(i) lays out DOL’s parameters for setting the job’s minimum requirements; and Part 656.40 requires requesting a Prevailing Wage Determination to establish the job’s salary. Before the LC can be filed, the employer will have to recruit with at least two Sunday newspaper advertisements, a 30-day job order with the State Workforce Agency (i.e., Maryland DLLR), and three other steps from the DOL-approved list. The basic parameters for recruitment are laid out in Part 656.17. A notice also has to be posted to advise employees that an LC will be filed; if the company’s workforce is unionized, then notice to the representative is needed (Part 656.10(d)). Any fees, legal or otherwise, associated with obtaining the LC approval have to be paid by the employer and cannot even be reimbursed by the worker. As this process is attestation based, documents showing compliance with the law must be retained for five years from filing (Part 656.10(f)). Once the application is filed, the DOL may audit the case to ensure compliance (Part 656.20). 

If the LC is denied, then there is a review available to the Certifying Officer who denied it, followed by the Board of Alien Labor Certification Appeals (BALCA).

The LC process can be complicated both by the numerous rules as well as by the relatively strict manner in which they are applied. For example, an individual must get a Federal Employer Identification Number even if sponsoring a domestic worker for her home (Debra Alpert, 2007-PER-00109 (Dec. 17, 2007)). Another important principle is recruitment conducted for an LC is valid for a limited amount of time; if an ETA Form 9089 is denied, the employer may have to re-do all of the recruitment, which can be an expensive proposition. It becomes, therefore, critical to proceed cautiously making one’s best effort at avoiding mistakes.

Part 656.11(b) prohibits any “modifications” to the application once it is filed. While in effect since 2007, BALCA only recently ruled, in Sushi Shogun, that even a typographical error is a lawful basis for denial. In 2006, BALCA’s first decision under the current version of 20 CFR Part 656, HealthAmerica ruled that typographical errors could be forgiven if documents maintained under Part 656.10(f) showed compliance. While Sushi Shogun overruled HealthAmerica, saying the denial was correct when the employer wrote the prevailing wage on the form as $10.14 instead of $10.04, circumstances that can be shown to violate due process may warrant a reversal. The continuing viability of due process was address by BALCA in Riverwalk Education Foundation, Inc.; however, it was not enough for reversal of the denial in that case because the employer had failed to include a travel requirement in its advertisements of the job. 

Given the substantial interest the DOL has in making sure potentially qualified U.S. workers understand where a job will be performed, BALCA concluded that even under the due process test in Mathews v. Eldridge, adopted by HealthAmerica, the LC denial was correct. The government’s interest in ensuring the LC process protects the ability of U.S. workers to be considered for positions that an employer wants to fill with a foreign national drives the enforcement of the program’s rules. The lesson for attorneys handling such cases is to be informed and educated counselors.

Adam J. Rosen is a member at the Murthy Law Firm. His practice includes employment-based immigration law.

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Publications : Bar Bulletin : August 2013

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