The meeting began with a welcome by Mr. Carlson and a tour of the Atlanta Processing Center. The following agenda items were then addressed:

Transcription

1 Minutes of AILA/DOL-ETA Liaison Meeting April 27, 2005 Present for DOL: Bill Carlson Chief, Division of Foreign Labor Certification Rose Audette - Immigration Counselor, Solicitor s Office, ETA Legal Services Division Gene Caso - Center Director, Atlanta Processing Center Floyd Goodman - Certifying Officer - for Temporary and PERM, Atlanta Processing Center Arthur E. Reyes - Certifying Officer, Atlanta Processing Center Beth Sledge - PERM Team Leader, Atlanta Processing Center Present for AILA: Fran Berger Dyann DelVecchio Angela Ferguson Karen Koenig Cheryl Lenz-Calvo Jeanne Malitz Becky Sigmund Adan Vega Deborah Notkin Chuck Kuck Crystal Williams Cora Tekach The meeting began with a welcome by Mr. Carlson and a tour of the Atlanta Processing Center. The following agenda items were then addressed: Backlog Reduction Center Mr. Carlson advised that DOL expects to issue FAQs on Backlog Reduction early next week. 1. Some 45-day letters were sent to attorneys, but the address did not include the name of the law firm, creating delivery problems and in some situations the closure of cases. Has the issue been resolved? Answer: BRC staff has been advised to include the Law Firm Name and Attorney Name in the 45-day letter. They were previously advised of this, but letters without the information are still being issued.

2 2. Please confirm what the BRC will do if they receive a change of address for attorneys or employers on a case that has not yet been entered into the BRC system. Answer: A full-time contract person has been assigned to work on initial data entry, to verify that a file has been received and is in the system, and to answer congressional inquiries. DOL is working hard to get cases entered. 3. Please confirm that the 45-day letters may not be issued on a FIFO basis, but once these letters are returned, FIFO will control processing of the application. Answer: That is correct. With regard to the 45-day letters and case closed letters, internally the DOL has addressed this issue. The purpose of the 45-day letter was to eliminate cases that will no longer be processed. At the start of the PERM program, the DOL goal was to get all of the cases into DOL possession and out of the SWAs as quickly as possible in order to ensure safeguarding of files. The SWAs received a great number of filings in connection with the 3/27/05 pre- PERM filing deadline and they are still in the process of forwarding those cases to the BRCs. All SWA cases should be delivered to the Backlog Reduction Centers by the end of April In spite of the DOL s detailed instructions to the SWAs, not all cases were boxed and sent to the BRCs in the strict chronological order that was requested. Some attorney correspondence with the BRCs was not matched to the file before the 45-day letters were sent, resulting in 45-day letters being sent to prior counsel, old addresses, and so on. Also, not all correspondence filing was up to date in the SWA files. Some SWAs sent boxes with un-filed correspondence to the BRCs. DOL is making every effort to match up correspondence and loose papers, G-28s, etc., with the proper files and to electronically update addresses. Work-arounds have been put into place but it will take some time. Cases that are closed in error can be re-opened. The management process is changing daily as the boxes are opened. 4. What would be the best way for members to deal with cases that were closed in error by the BRCs for failure to respond to the 45-day letters, when in fact a response was submitted or the 45 day letter was not received due to a change of address, etc.? Answer: When a response to the 45-day letter has been sent to the BRC, but the case was closed anyway, it is simply an error. Some of the 45-day letters were sent out before the DOL had their system set up to handle the return correspondence. Mr. Carlson is working with AILA to resolve these cases, which can be referred to Liaison - - Crystal Williams (cwilliams@aila.org) or Fran Berger (fberger@fcbergerlaw.com), who will bring them to Mr. Carlson s attention. Also, in -2-

3 a BRC FAQ expected in early May 2005, there will be instructions for dealing with improperly closed cases. Mr. Carlson suggests that the Employer s attorney write to the BRC. Staff should now be double checking data entry prior to sending out the case closed letter. No correspondence is being destroyed. Mr. Carlson is open to suggestions on ways to improve the processing. AILA suggested a form letter/ response from DOL so that if an attorney/employer sends in correspondence or new evidence, he/she will at least receive a response and know that it has been received. AILA also suggested a designated central or P.O. Box for all change of addresses and/ or new G-28s. Mr. Carlson will take the suggestions back for consideration by Contractors and staff. 5. Can you explain how the two tracks will work for processing RIR and Traditional labor certification cases at the BRC? Answer: The track question will depend on how many of each type of case end up in each track. This number is unknown until all boxes are opened and all cases are entered into the system. Traditional cases with an RIR conversion requests will be put into the system with FIFO order as of the original filing date. 6. We continue to require proof of pending Labor Certification applications to support requests made to USCIS for H-1B extensions beyond six years. Many of these cases are now at the BRCs. Please advise as to any agreement regarding issuance of this evidence among the BRCs, the SWAs, and USCIS. Answer: DOL is still working on the 7th Year extension verification issue for H-1B filings. DOL and USCIS are discussing this next week and expect to have an answer next month. DOL is trying to find the quickest solution, possibly printing the initial computer screen that contains the beneficiary, employer and case number. The refiling of an identical PERM case and the mis-match/45 day letters will complicate the process since the case must be pulled. Currently, there are approximately 100 refiled cases pending. Drafting Issues 7. Can you provide guidelines for drafting a PERM ad where there are multiple openings for the job offered? Would the following be acceptable: 5 Attorneys, Attorneys, Attorneys, multiple openings? Answer: As long as there is no fraud, DOL will be reasonable. AILA members explained that in the past there existed variations in approach among the SWAs and -3-

4 DOL regions. Mr. Carlson responded by stating that DOL will work to eliminate regional variations and to harmonize procedures. National standards will be developed, and regional differences eliminated. Standardization is the goal. Mr. Carlson s office will review all new standards developed by the Center Directors and Certifying Officers through daily teleconferences. The future of PERM is not to be an extension of the past labor certification bad practices. 8. Where are we on the backlog cases? Answer: Backlog numbers are not available. Additional staff is processing backlog cases, so there should be a boom or bubble of decisions coming. Difficulties include the fact that the centers did not have enough certifying stamping machines so they have had to purchase them. Cases are still trickling in to the Backlog centers from the SWAs from last minute deadline filings. Additional staff has been added to support the Center Directors and Certifying Officers in Philadelphia and Dallas. Philadelphia is ahead of Dallas on getting cases into the system, but Dallas is getting certifications out a bit faster. Staffing allocation may change depending on the types of cases coming out of the boxes. DOL will try to keep the processing times even based on FIFO. The FIFO sorting is done upon return of the 45 day letter. Not all SWAs followed the shipping instructions so getting the FIFO order has been difficult. Prevailing Wages Mr. Carlson indicated there will be some clarification on Prevailing Wage issues during the May 3, 2005 Webcast and in the Prevailing Wage Guidance expected to be issued within the next two weeks or so. See DOL Website and AILA InfoNet for more information. DOL will include a Senior IT person on the May 3rd call to discuss problems/fixes with the PERM system. The prevailing wage issues raised in our agendas will be addressed in the forthcoming guidance. Specific Form Drafting Questions Specific answers to some of the agenda items will appear in FAQs in order that DOL reaches all stakeholders at one time. Denials 9. AILA members have reported that they have denials, but for unknown reasons. When will we receive the written denials? Answer: Employers must set up the accounts for security, liability and exposure. The employer will get a password and can then set up sub-accounts for attorneys. DOL will track the source/footprint. IP addresses are tracked. A temporary draft -4-

5 that has been typed and saved in the DOL system has a case number assigned with a T in front of it. If the case number has a T, it has NOT been submitted and has not been denied. On the case status screen, it will show as incomplete, but it has not been submitted. Once submitted, case numbers with an A are Atlanta cases and those with abc are Chicago cases. T is for a temporary draft. The most common problem thus far has been the incorrect count of 30 days. In fact, six (6) denials had already been issued as of mid-day on for failure to include a full 30 day job order--the employer used a job order in February which was not a full 30 day month. This is a continuing problem. The letters from the DOL giving the reasons for the denials will start going out shortly. Denials are also common for employers using P.O. Boxes. Every document must have a street address, including the prevailing wage determination, etc. Drafts may be saved and retrieved. Check the User Guide in this regard. People are saving multiple copies by hitting the Save button. DOL then has to delete some of the multiple copies, causing some panic. The concern with multiple applications is fraud. 10. Recently, an AILA member was listening to an ILW teleconference in which the moderator advised that USDOL had issued a projection that about 5% of the PERM cases will go to supervised recruitment, only about 20% will be audited, about 25% approved and 50% denied. Please confirm this information Answer: USDOL has not issued such a projection. 11. The second question on page 17 of the FAQ indicates that O*NET indicates that the employer must correctly answer H-12 or H-13 (requirements not usual to the occupation) accurately or the case will be denied directly without audit. Since the issue of what constitutes a requirement not normal to the occupation is quite vague, this would seem to be a harsh and unfair result. Please note that at least in the prevailing wage context, there was a lack of certainty about whether requiring certain programming languages would be considered unusual for high tech positions. We would suggest that the issue requires an audit rather than a denial of the application without an audit, at least until what is viewed as an unusual requirement is clearer. Answer: DOL will clarify the Item 17 from the first FAQ. If the DOL believes there is misrepresentation or exaggeration on specific requirements, then their intent is to deny. DOL will not return to the days of the NOF. AILA believes there is a lot of grey area related to business necessity. In response, DOL asked for specific examples of jobs that have skill requirements. Listing a special requirement will not automatically trigger a computer generated denial, but will involve review by an -5-

6 adjudicator. DOL suggests that we give some time for issues to be resolved and if not favorable, it should be easy to re-file. Also, don t forget that there are real people, not only computers, involved in this process. 12. Will DOL consider restoring the SVP of 8 to many professional positions that have been reclassified. Please note that the occupation of Chemist is now job zone 4, SVP of 7; the occupation of Biochemist is job zone 5, SVP of 8. The wage level check list indicates the education & training category code 2 to Biochemist and 5 to Chemist. Such inconsistencies do not make sense. Please review the issue. Answer: This is not under Mr. Carlson s control. It is BLS (Bureau of Labor Statistics) that determines the O*NET wages and BLS has downgraded some of the occupations. DOL will share the issues raised with BLS. In the forthcoming Prevailing Wage Guidance, the SVP range and OES issues are specifically addressed. However, this is also an issue of minimum or special requirements. DOL will monitor the consequences, denials, audits, etc. as well as the demands on resources and the incidents of fraud. The system is currently resource driven. 13. Follow-up to SVP: What is meaning of an SVP of 7<8? Answer: Look to the Prevailing Wage Guidance. Give DOL some concrete examples and they will share those with BLS. The Epidemiologist example is one to be considered. 14. What is normal for the position? Answer: Go with the standard listed in the Job Zone and be conservative in the short term. 15. We urge a reversal of your position regarding the invalidity of a pre-march 8, 2005 Level 2 OES wage that would have gotten an identical wage under Level 4 of the post March 8 data. We submit that denials on this basis are quite unfair since getting the priority date and filing at the earliest possible time may have been of critical importance and then the guidance was so late and the SWAs were overwhelmed. Where is the harm if the resulting wage determination would have been the same? Answer: The upcoming Prevailing Wage Guidance will provide clarification. -6-

7 Job Orders 16. Job services across the board are unwilling or unable to give employers the date the job order was put in the system, which creates a problem in completing the PERM application. In such a case, can an employer rely on the date it was submitted to be the day the job order was placed or possibly the day after. Answer: DOL will deal with the SWAs and make sure that there is the ability to put dates on job orders, so that it does not become an audit issue. State information is changing constantly, based on state and federal funding. DOL is trying to get it straightened out. 17. In DC, we discussed the possibility of DOL providing a list of job order contacts in each state since we are still having problems finding out how and where to place job orders. Can DOL provide assistance in this regard? Answer: DOL will get back to AILA on this question. 18. In New Jersey, the State is not allowing the employer consulting firms to place a job order unless the employer has a license in the state or is not required to hold a license, depending on the nature of the employer. One or more members has an employer that the state thinks may not need a license but must be vetted through the consumer affairs department, which can take up to six months. In the past, when job orders were supervised by the SWAs, other state requirements did not preclude placement of a job order while they were reviewed. The issue here is the employer's ability to file a PERM application in a timely matter, not circumvention of state law. Can DOL provide assistance in this regard? Answer: This New Jersey issue was new to DOL. In any event, DOL will not get involved in state law matters of this nature. 19. Regarding the job order, please clarify that the job order requirement would not require the employer to contact all individuals referred by computer as a match, rather the employer would only be required to deal with any applicants who directly contact the employer in response to the job order. For example, where the job order requests that the applicant submit a resume to a specific physical or address, is the employer responsible for considering the resumes that arrive from interested applicants, or is the employer responsible for affirmatively contacting all potential "matches" generated from the computer system? Consistent with all other recruitment activities and in the interest of the reasonable use of resources of all parties involved, please confirm that the employer should only be required to consider applicants who indicate an affirmative interest in the position. -7-

8 Answer: The Job Orders result in numerous matches, but the employer is only required to contact those individuals who submit resumes directly to the employer. 20. Please confirm that the Decision Matrix knows to exclude PWDs based on non-oes wage data issued on or before March 8, 2005 from the OES Pads. Answer: Yes, they are aware of this. 21. We understand that only one recruitment activity can take place within 30 days of filing. However, during the 30 days immediately prior to filing, is the employer required to stop other activities that were commenced between days prior to filing? For example, there may be an employee referral program, a SWA job order, or usage of a recruiting firm that the employer wants to keep up. Will the Decision Matrix issue a denial because these recruitment efforts continued to run during the last 30 days, and thus it appeared that more than one activity occurred in the 30 days prior to filing? Answer: DOL needs to clarify this with the Systems/IT people. Continuing recruitment should not be a basis for denial, but it may happen inadvertently due to the software. If so, this should be corrected. 22. The form says to list the primary worksite address. If primary means the place the person will be at most often, that might not be the Corporate HQ. What does DOL consider to be primary and how does one reflect various worksites... on the form? Which location would be used for the prevailing wage determination in a multiple worksite application the headquarters or the location where the worker is currently spending most of the work time? Answer: DOL believes this is in the PERM instructions, but will address it in an FAQ. 23. Where do you put the alternate experience requirement? No place to put it on the form - Answer: Look for response in upcoming FAQ. 24. How do we deal with roving employment locations on the PERM form? Answer: Look at the PERM instructions for the job location. Item H-1 on the form. Conversion -8-

9 25. Can you have more than one Labor Certification pending? Employers are concerned about getting one of them approved, keeping the H-1B 7th year eligibility, and keeping priority date. Answer: DOL is again looking at the issue of identical. DOL s general policy is that they do not want to see multiple filings. Discussions are on-going. They are revisiting the issue in light of the re-file numbers. DOL does not want to continue the backlog problem and they address this in a new FAQ. DOL started conservatively with a bright line test for identical. However, they may be able to move off of the strict position after full consideration of the duplicate filings. Re-files take the day processing time off of the table. Re-files now are identical cases where the priority date is being maintained. Budgets will be affected negatively as it will take personnel time to pull the old cases. DOL is concerned that re-files will bring the backlog from the BRC to the PERM centers, affecting the timeline goals for the new Centers and impacting other DOL commitments made to Congress. 26. A nonprofit organization changed its name since the filing of the pre-perm application. Under the DOL definition, does this mean that the organization cannot file under PERM and retain the priority date because the applications will not be viewed as identical? Answer: For the moment, the answer is no. 27. We understand that there is a database on permanent labor certifications that is made available to the public with information from applications that would include the employer s name, job offered, salary, and attorney. This came up previously and we continue to have privacy concerns about the accessibility of this data. Answer: This information is on the DOL Labor Certification website and the posting contains labor certification information and attorney name. The only information that is not on the website is the alien s name. The DOL goal is to make certain information available to the public in order to avoid numerous FOIA requests. DOL believes that all the information now contained on the site is otherwise FOIA-able. However, DOL will review the information posted. Additional Question: Do you share Labor Certification filing/alien information with ICE? Answer: We will not discuss this today. Current PERM filings - Approximately applications saved and incomplete in the system, not yet submitted. -9-

10 Is there a sweep of the incomplete cases after a period of time? Answer: Not that DOL knows at this time. Approx. 700 applications have been processed employers registered as employers. Approx. 100 Re-files have been submitted to retain earlier Priority Date. Drop out rate at BRCs is still very low. -10-