OFLC Stakeholder Meeting Prevailing Wage, PERM, and H-1B Programs March 7, 2017 AILA DOL Liaison Committee Meeting Minutes

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1 OFLC Stakeholder Meeting Prevailing Wage, PERM, and H-1B Programs March 7, 2017 AILA DOL Liaison Committee Meeting Minutes Government Representatives in Attendance: William Thompson, Acting Administrator, OFLC (via telephone) (currently serving as Deputy Assistant Secretary of Labor) Albert Herrera, Deputy Administrator, OFLC (currently serving as Acting Administrator, OFLC) Bill Rabung, Director of Operations, OFLC Renata Adjibodou, Center Director, National Prevailing Wage Center Brandt Carter, Center Director, Atlanta National Processing Center Shane Barbour, Center Director, Chicago National Processing Center Brian Pasternak, Director of Programs, OFLC Stakeholder Groups in Attendance: American Immigration Lawyers Association (AILA) NAFSA: Association of International Educators ( NAFSA ) Council for Global Immigration (CFGI) AILA Note: The questions contained herein were presented by various stakeholder groups. The questions marked by an asterisk (*) are written as presented and have not been edited by AILA. INTRODUCTORY COMMENTS William Thompson has temporarily taken on the role of Deputy Assistant Secretary of Labor during the presidential transition period. It is expected that he will return to his role as Acting Administrator of OFLC once the transition is complete. The H-2 programs have been exceptionally busy during the past several months and have required significant OFLC resources to ensure that regulatory processing requirements were met. Filings were 30% greater this year than at this time last year, but there have still been processing delays. H-1B LCA processing is continuing to be completed on a timely basis (within the required 7 business days). OFLC has seen a substantial uptick in LCA filings in the past several weeks, which is expected in light of the H-1B cap season. OFLC was not notified in advance about the upcoming suspension of H-1B premium processing, but it does not anticipate problems handling any additional LCA filing volume that may result from that suspension. OFLC received some additional funding during FY2017 to assist with reduction of the audit backlog and other programs, but those allocations are due to expire at the end of the current fiscal year. If filing volume remains the same and funding is decreased, it is likely that there will be a slowing of processing times. This is most likely to affect PERM processing because that program, unlike H-2s and H-1B LCAs, does not have a regulatory mandated processing time. 1

2 OFLC is continuing to make efforts to streamline wherever possible and improve efficiency, but even with these changes, some processing delays are likely to occur if funding is decreased. OFLC is continuing to seek the authority to charge processing fees, but it is unknown at this time whether that authority will be granted, or whether the new administration is supportive of the fee authority proposal. The political appointments of Secretary of Labor and Assistant Secretary of Labor for the Employment and Training Administration are not yet filled, and as a result, it is not possible for OFLC to move forward with significant policy initiatives at this time. For this reason, it is unknown at this time whether a PERM modernization regulation will be introduced in the coming year. OFLC is continuing with cross-training and deployment of staff across processing centers, so that PERM analysts can assist with prevailing wage determinations, H-2 analysts can assist with PERM processing, and other cross-processing can occur. This was utilized in the prevailing wage context recently to work toward reducing the backlog in prevailing wage processing. In addition, OFLC s continued move toward more electronic processes is helping efficiency, including the transition to sending PERM audits and receiving PERM audit responses electronically. OFLC has also worked with DOL s IT personnel to ensure that system maintenance and patches are not done during peak filing times, and OFLC has seen better stability of their IT systems such as icert and the PERM portal as a result. However, OFLC s IT Transformation project has been temporarily placed on hold during the transition. OFLC is subject to the Executive Order on the hiring freeze, but so far, it has not had a significant staff departure. It is unclear what exceptions will be made to the hiring freeze, but OFLC will address this when backfilling a position becomes necessary. OFLC remains committed to stakeholder engagement and transparency, as well as providing training to users of the PERM program and the temporary programs. OFLC anticipates holding webinars on various aspects of the PERM process during the coming months to continue to educate users of the programs. Follow-Up Conversation with Department of Labor Wage & Hour Division Regarding Electronic Public Access Files During the September 12, 2016, DOL Stakeholder Meeting, OFLC stated that it believed that a scanned copy of the signed Labor Condition Application (LCA) could be maintained as part of an electronic LCA public access file but that it would confirm with the DOL Wage & Hour Division on that issue. AILA reached out to the Wage & Hour Division and received confirmation that an employer can maintain a scanned copy of the signed Labor Condition Application and that it does not need to maintain a hard copy of the original signed LCA. 2

3 PREVAILING WAGE PROGRAM STAKEHOLDER QUESTIONS 1. During the December 2016 stakeholder meeting, AILA raised concerns regarding lengthy processing times for PWDs. Many PWDs are taking in excess of 4 months, and it is not uncommon for employers to have to utilize the redetermination process or to make a request for Center Director review to address concerns with the occupational classification or wage level provided in the PWD. Extensions of H-1B status beyond the 6 year maximum under the American Competitiveness in the 21 st Century Act (AC21) are based upon a PERM application being filed more than 365 days before the beneficiary reaches his/her maximum stay in H-1B status, and substantial delays in the ability to file a PERM application can result in H-1B workers being unable to extend beyond the 6 year maximum. While we understand that OFLC and the NPWC are working with limited resources and an increase in applications, what efforts are being made to reduce prevailing wage processing times? OFLC Response: The NPWC is aware of concerns regarding processing times and has been taking steps to reduce processing times. As of today, PWDs based on OES are taking an average of 82 days, and PWDs based on non-oes data are taking an average of 120 days. NPWC does not anticipate that PWD processing will drop below an average of 80 to 90 days. NPWC also did a sweep to find and address any PWD requests that were well outside of processing times and identified a number of older cases filed as long ago as June Those have largely been processed following the sweep, with approximately 10 cases filed in or before October 2016 that have not yet been processed. Once those are addressed, the oldest remaining cases will be PWD requests filed in November Employers with a PWD request that is pending far beyond posted processing times should the PWD Help Desk at FLC.PWD@dol.gov and put Center Director Request in the subject line to ensure that it is flagged for resolution. In response to a follow-up question from AILA, NPWC explained that contractors initially process PWD requests before those requests are assigned to a prevailing wage analyst. The contractor can issue an RFI if it appears that there is additional information that would be helpful in determining the prevailing wage. When the RFI response is received, the case is then placed back in the queue for assignment to a prevailing wage analyst. This is why there is sometimes a delay between the RFI response and issuance of the PWD and why there are sometimes two RFIs issued (one by the contractor and one by the analyst). 2. During the September and December 2016 stakeholders meetings, OFLC stated that when a job description includes job duties that span more than one SOC code, it would not evaluate the percentage of time spent in each job code, but rather would select the SOC code with the highest wage, even if only a small percentage of a worker s time is spent in that occupation. In Matter of Lee Johnson Capital Management, LLC, 2016-PWD (Dec. 21, 2016), BALCA cited GASP, Meltwater, and Quest Diagnostics in overruling the PWD and remanded for a determination based on the O*NET job description that best corresponded to the employer s job offer. Thus, even though a few of the employer s duties may have been in 3

4 line with duties of Financial Managers, BALCA held that Financial Specialists, All Other should be assigned because it better matched the duties overall. BALCA specifically dismissed the CO s argument that the NPWC should default to the occupation with the highest pay. In light of this decision and the line of cases cited by BALCA, is NPWC now following the procedure set forth in Lee Johnson Capital Management and choosing the occupational category based upon the best match to the job duties overall rather than the one with the highest prevailing wage? OFLC Response: The NPWC is aware of the BALCA decision cited above but has not changed its process for addressing prevailing wage requests for positions that involve a combination of occupations. The NPWC will identify which occupations are encompassed by the job description, and it will choose the occupation with the higher wage. NPWC has not changed this approach despite the BALCA decisions noted above and does not intend to change this approach at this time. 3. At the December 2016 stakeholder meeting, AILA provided examples of several employers that did not obtain ACWIA classifications despite submitting extensive documentation establishing ACWIA eligibility. OFLC indicated that it was reviewing this issue and that some additional training might be conducted. Please provide an update as to what, if any, additional training has been provided to analysts regarding ACWIA eligibility and how employers can better demonstrate to NPWC ACWIA eligibility. OFLC Response: The NPWC has conducted additional training and is reviewing current procedures to ensure that ACWIA classifications are assigned where appropriate. The NPWC is amenable to reviewing additional examples of classification concerns in this area should misclassifications continue to occur. Employers also have the option of contacting the NPWC Help Desk at FLC.PWD@dol.gov or seeking redetermination/center Director Review where an ACWIA wage should have been issued but was not. H-1B PROGRAM 4. USCIS has taken different stances during prior H-1B cap seasons regarding whether evidence of a filed LCA is sufficient or whether an employer must provide a certified LCA at the time of filing the H-1B petition. Have OFLC and USCIS coordinated to develop any contingency plans in the event technical difficulties arise with the processing of LCAs? OFLC Response: OFLC does not have any official coordination process with USCIS. However, OFLC does send workload information to USCIS to help USCIS in predicting filing volume. No contingency plans have been created, but OFLC does not anticipate technical difficulties with processing of LCAs even with the increased filing volume. 5. During the last H-1B cap season, there was often a delay of as much as one week between OFLC completion of the FEIN verification and notification to the employer that the process was completed. Has OFLC changed its procedures to eliminate or minimize this delay? 4

5 OFLC Response: There has been no change in procedures. OFLC s general goal is to process FEIN verification within no more than one week. OFLC is not aware of significant problems with FEIN verification at this time. PERM PROGRAM 6. As of December 2016, employers are being notified of audits, RFIs, and denials by . OFLC is also encouraging (but not requiring) employers to respond to audits, RFIs, and Supervised Recruitment (SR) notices by . A. Please provide an update on the percentage of audits, RFIs and SRs that are being responded to by , instead of hard copy mail. OFLC Response: Since the electronic process was deployed in December 2016, OFLC has received a significant number of audit responses by . OFLC does not have specific figures, but it stated that the majority of audit responses are now being submitted to OFLC by e- mail. This is very helpful to OFLC and makes the process more efficient. B. Please also confirm if an electronic audit, RFI, or SR response is not accepted by the OFLC system due to size, etc., the system will automatically notify the sender that the has been rejected. OFLC Response: Attachments larger than 20MB typically cannot be received by OFLC and should be broken up into multiple s. When an attachment is too large, a non-delivery response should be generated by the sender s program. If an employer receives a denial for failure to respond to an audit but believes that it did timely respond, it can file a Request for Reconsideration and provide evidence of the timely response. If OFLC agrees that the response was timely sent, it will likely reopen the case. OFLC is looking at options for direct upload of documents instead of relying on . At this time, OFLC does not recommend responding with Dropbox or Google Drive type links, as it may have difficulty accessing such sites. The documentation should be provided as an attachment. C. Does the PERM/SR Help Desk confirm receipt of the response, and if so what is the normal timeframe in which such a confirmation will be sent? OFLC Response: OFLC is not aware whether the system will allow a read receipt to be sent. AILA noted that members report such receipts generally are not sent by OFLC s system. However, OFLC will normally send a confirmation of receipt of the audit or SR response within 2 business days. If such a confirmation is not received, employers or their representatives can contact the PERM Help Desk (plc.atlanta@dol.gov) for confirmation of receipt D. Finally, is there a difference in processing time for responses that are filed in paper format via mail as compared to those filed electronically? OFLC Response: No, there is no difference in processing time for responses. 5

6 7. It is well settled BALCA case law that OFLC is not entitled to presumption of delivery of mailed documents, including RFIs, audits, and other correspondence. 1 BALCA has consistently noted that there is no reason to presume that an employer would not respond to correspondence it received from OFLC, particularly where it knows that failure to do so would result in a denial. As OFLC has shifted to almost exclusive electronic correspondence with employers and attorneys, please confirm that OFLC will apply this same principle to non-receipt of electronic correspondence. Please also explain OFLC s mechanism for attorneys to notify OFLC of instances of non-delivery so that OFLC can reopen cases, including prevailing wage requests. OFLC Response: It is NPWC s policy to void the PWD request if the response to an RFI is not timely received. NPWC will consider whether it would be possible to have some kind of reconsideration or reopening process, but it is concerned about allocation of resources. NPWC reminds that filers ensure that contact information is entered correctly and remains up to date when the prevailing wage request is submitted. In those cases where PWDs have been voided as a result of a lack of a response, NPWC s system indicates that that the RFI was sent and at least reached the intended recipient s server. As a result, it appears that RFIs are generally being received as intended. 8. Are there processing timeline goals for DOL processing of responses to requests for business existence documentation? If a registration appears to be stuck, and the Help Desk is not responding to inquiries, what is the escalation procedure? OFLC Response: OFLC has not set processing goals for Business Existence verification, but normally it does not expect such verification to take longer than 30 days. Employers with business existence verification requests pending for more than 30 days should contact the PERM Help Desk (plc.atlanta@dol.gov). When inquiring, it is important to provide the exact employer name, the date the business existence documentation was submitted, and the FEIN that is pending verification. [AILA Note: Practitioners should begin the Business Existence verification process no later than the time the prevailing wage determination request is submitted in light of the ongoing delays in processing such verifications.] 9. Do Help Desk contractors have Service Level Agreements (SLA)? For example, are there required response timelines for inquiries sent to the PERM account, SR Account, PWD Account, etc.? If an inquiry is forwarded by a contractor to an OFLC supervisor, does the contractor notify the employer/attorney who sent the ? If an employer/attorney sends an which includes For CO Review, in the subject line, does the contractor send an confirming that it has been forwarded to the CO for review with an estimated response time from the CO? 1 See Matter of JC World Bell Wholesale Co., Inc., 2016-PER (Nov. 16, 2016); Matter of Optica Technologies Incorporated, 2012-PER (Sept. 13, 2016); Matter of Gazebo Contracting Inc., 2012-PER (Aug. 12, 2016); Matter of Biohorizons Implant Systems, Inc., 2012-PER (Feb. 8, 2016); Matter of Turkish American Society, Inc., 2012-PER (Feb. 3, 2016); Matter of High Performance Floors, Inc., PER (July 15, 2015). 6

7 OFLC Response: There are not specific SLAs, but in general, questions to the Help Desk should receive a response within at least 2 business days. Further research or follow-up may be needed, particularly with complex problems, but there should be an interim response within 2 business days. 10. At our last meeting, OFLC stated that it is looking to providing a different form of notification when a case is manually filed as there have been reports that some employers have not received the verification notice. In the interim, OFLC has instructed employers to contact the Help Desk with questions about the status of paper filed applications. A. Please provide an update on the implementation of any new procedures to notify employers of case receipt or RFIs in manually filed PERM cases. B. How long should an employer wait for the verification notice before following up with the Help Desk? OFLC Response: Due to time limitations, this question was not addressed during the Stakeholder Meeting. 11. In Matter of Cognizant, 2013-PER (Sept. 29, 2016) and Matter of Infosys 2016-PER (May 12, 2016), among other cases, BALCA confirmed that it is inappropriate to announce new PERM policy through adjudications rather than giving legally sufficient notice to employers. What steps has OFLC taken to implement Cognizant and Infosys with respect to announcing new policies? OFLC Response: OFLC does not make policy changes through adjudications. However, where there is need for clarification of processes or where OFLC notes a filing pattern that OFLC concludes does not meet the regulatory requirements, OFLC will explain in the denial decision what it views as the underlying regulatory requirement and the way in which the particular case being adjudicated does not meet those requirements. Because multiple cases will at times contain the same or similar language, this can result in denial of multiple cases. Where OFLC believes that an announcement of a policy change is needed, it works with the DOL Solicitor s office on an issue-by-issue basis to identify the most appropriate way to provide legally sufficient notice. OFLC does not believe that the regulatory notice and comment process is required for all policy clarifications, and it believes that the issuance of FAQs is appropriate where those FAQs are consistent with the existing regulations. 12. *Guidance on licenses, published on February 6, 2013 in an FAQ states, Certifications and licenses not required for entry into the occupation are assessed an additional point in wage level determinations. By required for entry into the occupation is understood that the license may be imposed by a federal, state or local agency as opposed to an employer preference or requirement. 7

8 A. Does a government-imposed license requirement need to be listed in H-14, even when the job offer cannot legally be performed by an unlicensed person? B. Assume a physician to work with patients wholly within the jurisdiction listed on the form. Does the Employer have to list entry level license(s) required to be a physician in H-14? C. If the job requires an additional license from another jurisdiction, then would that extraterritorial license need to be listed in H-14? D. Would both licenses need to be written in H-14? E. If OFLC takes the position that all licenses must be on the form, may the employer simply indicate that in generic terms in H-11? ( Working as a licensed physician.. ). The fear is that by placing a government imposed license in H-14, the prevailing wage may be bumped up a point and that including it in recruitment or notice would be unnecessary and superfluous OFLC Response: Due to time limitations, this question was not addressed during the Stakeholder Meeting. 13. Matter of Smartzip Analytics, 2016-PER (Nov. 9, 2016), and Matter of Activehealth Management, 2016-PER (Jan. 19, 2017) both held that an employer is not required to include a durational requirement in H.14. During the December 2016 stakeholder meeting, OFLC indicated that it would suspend the issuance of denials on this basis while it considers the issue. Subsequent to the December 2016 meeting, AILA members have reported new PERM denials based on H a. Will the CO continue to deny PERM applications when H.14 includes unquantified experience/skills/proficiency/knowledge of/academic training? b. If not, and if a PERM application has already been denied on this basis, will OFLC consider the denial in its RFR government error queue? c. How many such denials does OFLC have pending in its RFR queue? d. If the RFR has already been denied, would OFLC and the Solicitor s Office agree to a motion to remand cases that are currently pending at BALCA? OFLC Response: Due to time limitations, this question was not directly addressed during the Stakeholder Meeting. However, see the notes of the discussion below regarding the H.14 FAQ that was released on March 6, Since the issuance of Matter of Tek Services LLC, 2016-PER-00207, (Nov. 16, 2016), BALCA has issued numerous decisions which cite Matter of Tek Services and reverse PERM denials that were based upon inclusion of Depends on Experience, Competitive Salary, Negotiable Salary, or similar in recruitment sources in lieu of the salary stated on the ETA Because these denials are being consistently reversed by BALCA, would OFLC and the Solicitor s Office agree to the following so that BALCA can better use its limited resources: 2 See A , A , A , A , A , A , A

9 a. Remanding these cases on its own motion if AILA provided a list of such cases pending at BALCA (similar to the process that was used for the Section K remands); or b. Supporting individual motions to remand filed by employers on a case-by-case basis. OFLC Response: Due to time limitations, this question was not addressed during the Stakeholder Meeting. 15. *The OFLC uses a wide range of terms to describe employer travel requirements. Would there be any possibility to define these terms for Stakeholders? Consider the following types of travel and descriptive terms in the context of advertising requirements. Which of the following requires travel to be advertised and what is the best terminology to use? Travel, Local as part of job duties (Deliveries, Cable TV Installation, On-site Repairs) Within the commuting area (no advertising required?) Without the commuting area (advertising required?) Travel, Local Occasional for Business Purposes within Normal Commuting Distance Not a Travel Requirement if de minimis (no advertising required?) Not a Travel Requirement if Optional (no advertising required?) Any Activity Outside the Door of the Employer s Establishment (advertising required?) Travel, Overnight Advertising required Travel, Optional No advertising required because it is not a requirement? Or, advertising required because it might be a benefit to some job seekers who like to travel? Travel, Two or More Job Sites Travel Requirement (advertising required) Travel, Roaming Advertising Required Travel, Various Unanticipated Locations Travel Requirement (advertising required) Do the terms Travel, Roaming, and Travel, Various Unanticipated mean the same thing Travel, Telecommuting Anywhere Advertising required. Travel, Telecommuting Specific Location For advertising purposes, a distinction must be clearly shown if telecommuting is an option for the employee who can choose anywhere to live or if telecommuting 9

10 is a requirement from the employer who requires the telecommuting worker to live in a specific geographic area. Telecommuting is not actually a travel requirement, but DOL policy requires it be listed as a travel requirement since it might be seen as a benefit to those who wish to travel. OFLC Response: Due to time limitations, this question was not addressed during the Stakeholder Meeting. 16. AILA members report language in audits as follows: Provide a recruitment report as described in 20 CFR (g)(1) that is signed by the employer or the employer's contact describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, summarized by the lawful job related reasons for such rejections. a. For all U.S. workers, who applied for the employer s job opportunity listed on the ETA Form 9089: indicate if the applicant(s) was interviewed; and provide copies of the resumes and completed employment applications. b. Provide employment applications, pre-screening questionnaire(s), test(s), and any other assessment tools used for the job opportunity. Please clarify the type of documents OFLC is seeking in 3(b)? Does this refer to standardized tests and/or employer-created screening tests that are given to an applicant? OFLC Response: This audit language is requesting copies of externally-facing documents used by the employer to assess applicant qualifications, such as job application forms, screening tests, and technical assessments completed by the applicant. OFLC is not seeking documents that would be considered attorney work product relating to legal compliance with the PERM regulations. 17. An AILA member reported receiving an audit with the following question: In accordance with the Department s regulations at 20 CFR (c), the employer must attest it has enough funds available to pay the wage or salary offered the foreign worker, and that it will be able to place the foreign worker on the payroll on or before the date of the foreign worker s proposed entrance into the United States. Please provide documentation to support the employer's current ability to pay the foreign worker the wage or salary offered in section G of the ETA Form The documentation must include, but is not limited to the following: State payroll tax documentation for the last 3 years 10

11 Bank statements for the current or latest profit-and-loss statement from accountant Federal income tax statement for the last 3 years Listings of the current employees and their job titles Current Year to Date (YTD) work contracts or letter of intent for work to be performed in the coming year. 3 The requested documentation is far too overbroad to demonstrate that the employer has enough funds available to pay the offered wage or salary. In addition, ability to pay is a question for USCIS, not OFLC. A. Is this request an aberration, or is it now being used in audit templates? B. If the latter, what is the purpose of inquiring about ability to pay? OFLC Response: Due to time limitations, this question was not addressed during the Stakeholder Meeting. DISCUSSION REGARDING MARCH 6, 2017, FAQ ENTITLED PERM ACTUAL MINIMUM REQUIREMENTS On March 6, 2017, OFLC released a new PERM FAQ entitled PERM Actual Minimum Requirements. See AILA Doc. No This FAQ was released in light of Stakeholder concerns regarding denials of PERM applications where Section H.14 of the ETA Form 9089 contains unquantified requirements. 4 For example, an employer might state that the position requires a Bachelor s degree in Computer Science and two years of software engineering experience and in Section H.14 state that a qualified applicant must also have education, training, or experience in C++ and Java. Alternatively, the employer might state in H.14 that the position requires proficiency in C++ and Java, or might simply list C++ and Java in H.14 without further qualifying language. While many cases with this type of language have continued to be approved, a significant number of cases drafted in this manner have been denied, and this topic has been an ongoing topic of discussion at OFLC stakeholder meetings. In Matter of Smartzip Analytics, 2016-PER (Nov. 9, 2016), and Matter of Activehealth Management, PER (Jan. 19, 2017), BALCA held that an employer is not required to include a durational requirement for experience listed in H.14. During the December 2016 stakeholder meeting, OFLC indicated that it was considering issuance of an FAQ on this issue, and it issued the FAQ 3 Case number A-XXXXX-XXXXX. 4 For additional background on this issue, see Minutes from DOL Stakeholder Meeting (2/23/16), AILA Doc. No , available at Minutes from DOL Stakeholder Meeting (5/24/16) AILA Doc. No , available at Minutes from DOL Stakeholder Meeting (9/12/16), AILA Doc No , Practice Pointer: Impact of Matter of Smartzip Analytics on Cases Denied for Non-Quantified Experience in H.14, AILA Doc. No , Minutes from DOL PERM/H-1B Stakeholder Meeting (12/6/16), AILA Doc. No , available at DOL Practice Alert: OFLC to Suspend Denials Based Upon Non-Quantified Experience in H.14 (12/8/16), AILA Doc. No , available at 11

12 on March 6, Because the FAQ was issued just before the March 7, 2017, OFLC stakeholder meeting, OFLC agreed to AILA s request to skip certain agenda questions in order to reserve time during the meeting for an in-depth discussion of the FAQ. AILA noted three primary concerns regarding the FAQ, and the discussion of those concerns is summarized below. 1. Effective Date of Guidance Under the terms of the FAQ as presently drafted, it will apply to all PERM applications filed on or after March 20, AILA raised strong objections to the effective date, and pointed out that there are thousands of cases in the pipeline that have been drafted based upon the logic set forth in Smartzip Analytics as well as years of DOL adjudication practice that specifically permitted unquantified experience as a part of Section H.14. AILA pointed out that with prevailing wage processing taking at times in excess of 4 months and with a 180 day window for completing PERM recruitment before the filing of a PERM application, there are thousands of cases actively being prepared that would be denied if filed after the March 20, 2017, effective date of this guidance. AILA explained that this will create a massive drain on resources both for OFLC and for employers. Thousands of prevailing wage determination requests will have to be re-filed so that the requirements are consistent with this guidance, which will substantially slow processing times that are only now beginning to drop below 90 days. Employers will be required to repeat advertisements that often cost thousands of dollars each. Some PERM applications will not be able to be filed to meet 5 th year H-1B deadlines or to avoid child age-outs, and some applications will be filed that do not meet the requirements of the new guidance, resulting in denials, requests for reconsideration, BALCA appeals, and federal court litigation. As such, AILA asked that, even if the substance of the FAQ is not changed to address the concerns noted below, OFLC should delay the effective date of the FAQ for 180 days to match the regulatory timeframe for the pre-filing recruitment process for a PERM application. OFLC appeared to take these concerns seriously, and it agreed to have internal discussions regarding the concerns raised by AILA relating to the effective date of the FAQ. OFLC agreed to advise stakeholders of the outcome of these discussions as quickly as possible, but it could not promise a particular date that an update would be provided. AILA emphasized that the longer it takes for OFLC to provide this update, the more work will be created as employers proactively refile prevailing wage determination requests and take other steps to attempt compliance with the new FAQ. OFLC stated that it understood the urgency and would provide an update to stakeholders as soon as possible. 2. Substantive Concerns and APA Compliance AILA stated that the terms of the FAQ, particularly the scenario examples listed under the Practice Tips section of the FAQ, represent a substantial change in policy rising to a level where OFLC should go through the notice and comment provisions of the Administrative Procedures Act (APA). AILA pointed to the fact that thousands of PERM applications have been certified that contain requirements drafted almost exactly like the scenario examples that the FAQ states should result in the case being denied. AILA argued that this is not simply a clarification of existing procedure, but it is instead a new, substantive, and materially significant 12

13 policy that is inconsistent with the existing PERM regulations. Where such a policy change occurs, APA compliance is required, and the FAQ process does not satisfy that requirement. AILA also explained that the language of the FAQ is likely to force employers into creating quantification of requirements where the employer s real-world requirements are not quantified, creating a divide between real-world requirements and PERM requirements. Many employers truly are seeking employees who are simply proficient in certain skills, and they do not require that the proficiency have been gained in a particular way or over a particular duration. There are also requirements that simply cannot be quantified in any reasonable way, such as fluency in a foreign language. To comply with the FAQ, however, those employers will likely have to decide on artificial quantifications; this ultimately narrows the pool of potentially qualified U.S. worker applicants, which is contrary to the underlying purpose of the PERM process. OFLC responded that it does not view the FAQ as a new policy. Instead, it believes that many applications are being filed with requirements that are sufficiently unclear to the point that it is not possible for the PERM analyst to determine the employer s actual minimum requirements. OFLC is further concerned that U.S. workers would also not be able to determine the minimum requirements, and they might be improperly deemed to be unqualified for the role as a result. OFLC stated that as long as requirements are clearly stated, they are permissible. The FAQ is intended to ensure that applications contain requirements that are clear and easy to understand by OFLC and by potential U.S. worker applicants. OFLC does not agree that the FAQ is a policy change that would result in APA compliance issues. 3. Lack of Clarity of the Language of the FAQ Finally, AILA pointed out a number of questions and concerns with the specific language of the FAQ. First, AILA noted that the FAQ refers to 20 CFR (i) and asked OFLC to clarify that the FAQ does not apply to special handling labor certifications under 20 CFR OFLC confirmed that the FAQ applies only to applications filed under 20 CFR , not to special handling cases. Second, AILA noted that just prior to the Practice Tips section of the FAQ, the guidance states that where an employer will accept any amount of experience in a particular skill, it should state that any experience is needed. AILA asked if this was the magic language for an unquantified requirement. OFLC replied that if the employer would accept literally any amount of experience with a particular skillset, it would be appropriate to list in Section H.14 that the role requires any experience with the particular skillset, but it reminded stakeholders that this would also mean that a U.S. worker with any experience at all in that skillset would be viewed by OFLC as meeting that qualification requirement. Third, AILA inquired as to the statement in Scenario 1 that a knowledge requirement must be accompanied by a definitive educational, training, and/or experience requirement. AILA asked what sort of definitive requirement should be included. OFLC stated that there is no specific way in which this must be drafted, but the requirement must be stated clearly. Employers could 13

14 specify a certain amount of coursework, state that the knowledge could be gained through academic research, or state a specific amount of experience that would provide the appropriate level of knowledge, among other options. OFLC stated that the critical point is that it must be clear what the employer will consider a sufficient level of knowledge to meet the knowledge requirement. Fourth, AILA inquired as to the statement in Scenario 2 that job experience is different from coursework, which would mean that stating a requirement of experience or coursework in H.14 would result in the application being deniable. AILA argued that many employers will accept knowledge that has been gained through either experience or coursework, and that this willingness actually expands the pool of potentially qualified U.S. workers. OFLC stated that it views coursework and experience as two entirely different things, and does not believe that that one can be substituted for the other without further quantification. If an employer will accept coursework in a particular skillset, it should state the coursework requirement in Section H.14. If the employer will accept experience in a particular skillset, it should state how much experience in that skillset is required. Stating experience or coursework does not provide OFLC with a sufficient level of detail to understand the employer s minimum requirements. Fifth, AILA inquired as to the statement in Scenario 3 stating that listing proficiency or expertise in a particular skillset will make the PERM application deniable. AILA again argued that many employers are truly seeking proficiency or expertise and do not have a preference as to how that proficiency or expertise is gained. OFLC reiterated that it believes it is necessary for employers to quantify how that proficiency or expertise can be gained or measured. Sixth, AILA asked for Scenario 4 to be clarified; specifically, AILA inquired as to whether OFLC is referring to the employer website advertisement that is part of the three forms of additional recruitment or whether it is referring to the requirement for the Notice of Filing to be posted on the employer s in-house media. OFLC stated that it is referring to the external website advertisement and that Scenario 4 is intended simply to illustrate that requirements listed by the employer must be consistent throughout the recruitment process. AILA stated that this approach may in some circumstances violate the en banc BALCA decision of Matter of Symantec. OFLC stated that it did not believe there was an inconsistency with this approach and that BALCA case. Finally, OFLC expressed willingness to consider any written input that stakeholders would like to provide on the FAQ, but it cautioned that accepting such input does not mean that OFLC intends to go through the notice and comment process with FAQs. AILA will be providing detailed written input to OFLC in the near future regarding the FAQ. [AILA Note: On March 10, 2017, OFLC removed the H.14 FAQ from its website and posted the following alert: In light of stakeholder input, which the Office of Foreign Labor Certification (OFLC) is considering, OFLC has temporarily removed from its website PERM FAQ Round 14 regarding Actual Minimum Requirements, originally published on March 6, OFLC will clarify and republish PERM FAQ Round 14 to provide additional information on its applicability to PERM applications and associated prevailing wage requests and determinations. AILA is monitoring the status of the FAQ and will provide updates as they are available.] 14