Information for Supervisors and HR - Holland & Hart LLP · 2017-01-15 · Employment-Based...
Transcript of Information for Supervisors and HR - Holland & Hart LLP · 2017-01-15 · Employment-Based...
Information for Supervisors and HR
November 2013 © Holland & Hart LLP 2013
Advanced Immigration Issues:PERM Labor Certification Process
Topics• What are the basics of immigration?• What steps are involved in sponsoring your immigrant employee for
permanent residency (green card)?• What is your role as a supervisor or recruiter during the permanent
residency process?• What documentation must be presented upon denial?• What are frequent reasons for PERM denials?
November 2013 © Holland & Hart LLP 2013 2
PERM Statistics• 27% of the 72,462 PERM cases submitted in 2013 are under Audit review• 15-20% of all PERM cases are denied• 35% decrease in the number of PERM cases processed in 2013 v. 2012
– 9 months processing for PERM cases– 14 months processing for PERM Audited cases
• 52% of PERM cases require master’s degree; 38% require a bachelor’s• 83% of all PERM candidates are in H-1B status• Popular occupations include:
– Computer and Math 54%– Architecture and Engineering 10%– Management 9%– Business and Financial Operations 7%– Healthcare Practitioners 6%
November 2013 © Holland & Hart LLP 2013 3
Immigration Status
November 2013 © Holland & Hart LLP 2013 4
Citizen U.S. Passport
Permanent Resident
(Green Card)
Permanent Resident Card I-551
Non-immigrant workers and visitors
(H-1B, J-1, F-1)
Unexpired Foreign Passport and I-94
or I-797 or DS-2019
Non-Immigrant Visas
November 2013 © Holland & Hart LLP 2013 5
Source: DHS Office of Immigration Statistics
Temporary Workers
November 2013 © Holland & Hart LLP 2013 6
Source: DHS Office of Immigration Statistics
International Student Graduates with bachelor’s degree (F-1)
Student Begins work for 1 year under OPT
Employer decides to move forward – Phone call with attorney
Submits I-129 Petition
Receipt notice
I-797Approval Notice
Begins work as H-1B3-5 months later
New H-1B Worker
November 2013 © Holland & Hart LLP 2013 7
I-129Petition for Non-immigrant worker
Foreign born worker with H-1B status (unexpired from non-cap exempt employer)
Telephone call with Attorney
Submits I-129 Petition prior to expiration of H-1B status (at any point)
I-129Petition for Non-immigrant worker
Check 6 year cap (includes H1B1, H-3, L-1A, L-1B time)
Employee may begin work upon receipt(physically received)
3-5 months later
1 month
H-1B Change of Employer
November 2013 © Holland & Hart LLP 2013 8
I-797Approval Notice
Receipt notice
Transitioning to Green CardTransition from Nonimmigrant Status (H-1B or L-1) to Permanent Resident
November 2013 © Holland & Hart LLP 2013 9
H1B
H-1B Nonimmigrant Visa Permanent Resident (Green Card)
Where are we now?
November 2013 © Holland & Hart LLP 2013 10
U.S. University (F-1)
Another U.S. Employer
3 year H-1B 3 year H-1B
PERM Labor Certification ETA 9089
Immigrant Petition I-140
Adjustment of StatusI-485
6th Year
1 2 3
Past
Now
Future
Company
What are the major steps?• Focus first is on Company, not alien• Stage 1: “PERM” Labor Certification
► U.S. Department of Labor (DOL)• Employer tests labor market to learn whether any U.S. workers
appear to meet “minimum requirements of the position”• “Macro” perspective, looking “outward” to job applicants• Filing establishes alien’s “priority date” (important for AOS)
• Stage 2: Immigrant Petition (USCIS Form I-140)► U.S. Citizenship and Immigration Services (USCIS) confirms:
• “Micro” perspective, looking “inward” to specific worker• Is this company a genuine employer?• Does immigrant employee qualify for the position?
November 2013 © Holland & Hart LLP 2013 11
Step 3: Adjustment of Status I-485• Focus is on alien, not Company
• USCIS checks whether worker is threat:
► To public security (Criminal Record)
► To public health (AIDS)
► To public purse (Welfare)
• Gating Item: May not apply until PERM priority date is “current”
• Why ? ► Quota, country limit, visa “preference” types (Slide 13)► Numbers “cascade” downward through preferences
November 2013 © Holland & Hart LLP 2013 12
Employment-Based Preferences• EB-1: Employment-based first-preference (EB-
1) Petitions: Outstanding Researcher, Multinational Manager (28.6%)► Numbers never exhausted, cascade down to EB-2
• EB-2: Job requires advanced degree or equivalent (B.S. + 5 years’ exp. ) (28.6%)► Numbers not used cascade down to EB-3
• EB-3: Job requires B.S. jobs (28.6%)► Backlog predictions difficult due to changing data
November 2013 © Holland & Hart LLP 2013 13
November 2013 © Holland & Hart LLP 2013 14
Preference Based on Job RequirementsNot Immigrant Employee’s Degree
• Supervisor determines position responsibilities► And educational requirements
• Confirms with HR Business Partner► For consistency across department, site, and
company► Job mapping
• Affects wages► Next slide
Prevailing Wage
• To protect U.S. workers from hiring of cheap foreign labor
► via labor condition application (LCA)• Requires minimum wage for foreigners (posted on wall)► Prevailing wages
o Registered Nurse $50,232; M.S.: $55,931o Software Developers $57,866; M.S.: $69,950o Database Admin $53,310; M.S.: $66,435o Family Physician $117,208 - $216,819
• U.S. Workers, $7.25/hour, or “magic of the market”
November 2013 © Holland & Hart LLP 2013 15
Visa Bulletin, December 2013
November 2013 © Holland & Hart LLP 2013 16
All Charge-ability Areas Except Those Listed
CHINA-mainland born
INDIA MEXICO PHILIPPINES
Employment -Based
1st C C C C C
2nd C 08NOV08 15NOV04 C C
3rd 01OCT11 01OCT11 01SEP03 01OCT11 08JAN07
EB2 Visas
November 2013 © Holland & Hart LLP 2013 17
Num
ber
of Y
ears
0
1
2
3
4
5
6
7
8
9
10
China
India
EB3 Visas
November 2013 © Holland & Hart LLP 2013 18
0
2
4
6
8
10
12
China
India
Num
ber
of Y
ears
EB3 All Other
November 2013 © Holland & Hart LLP 2013 19
0
1
2
3
4
5
6
7
All
All
Minimum Qualifications
1. Job Description2. Pre-screening
questions
Prevailing Wage
Immigrant Employee minimally
qualified?
Qualified U.S. applicants?
How Quickly?I-485 Filing
Internally consistent if
audited?Consistent by DOL
standards?
Material Change:
Amended H-1B
November 2013 © Holland & Hart LLP 2013 20
Minimum Requirements
• PERM applications based on false or fraudulent minimum qualifications will be denied. Employers and attorneys who willfully misrepresent facts within the PERM process may result in debarment from future submissions, revocations of prior PERM submissions and investigation. 20 CFR §656.31(a)
November 2013 © Holland & Hart LLP 2013 21
Minimum Requirements– Are all of the minimum requirements necessary to perform
the job duties?– Did all current and former employees in the same position
meet the education, experience and skill requirements at the time of hire?
– In the future, would you be comfortable requiring all new hires in this position to hold all of the same minimum requirements?
– Which requirements are preferences versus requirements? This process is not intended to find the best qualified candidate on minimally qualified candidates.
– Can the skills or experiences required be easily gained without significant economic hardship to your company? If so, exclude those skills and experiences from the requirements.
November 2013 © Holland & Hart LLP 2013 22
Timeline of PERM Labor Cert Process
• Telephone call with supervisor, immigrant employee, HR and attorney
• Drafting and review of job description and minimum qualifications (Supervisor – one month)
• Submit prevailing wage request to DOL – 7 weeks• 35 days of recruitment• 30 days of cooling period• If no qualified U.S. workers, file ETA 9089 with
DOL (6 months to one year processing time)
November 2013 © Holland & Hart LLP 2013 23
Recruitment Ads
• Two Sunday newspapers, notices on wall• State Workforce Agency • Employer’s website • College placement office• Web “job boards” (like Yahoo, Hot Jobs, Indeed,
etc.)• Job fairs
November 2013 © Holland & Hart LLP 2013 24
Labor Market Test
• If qualified U.S. worker found:► The PERM may not be submitted; or► The PERM must be for multiple open positions,
and• After all qualified U.S. workers hired; • At least one position is still open for the H-1B worker
► Must H-1B worker be fired?• No
► Is PERM recruitment a charade?• DOL regulations require it to learn if U.S. workers want
job
November 2013 © Holland & Hart LLP 2013 25
HR Recruiter’s Role• Review Prescreening question responses – if more than 50% yes responses,
forward to supervisor for phone interview within 2-3 weeks.
• The phone interview should be conducted by whoever normally would interview conduct interviews.
• If applicants fail to reply to an interview invitation, e-mail applicant twice and send a letter via USPS return receipt. Retain a copy of the letter and return receipt.
• Send copies of resumes for disqualified candidates after 35 days of recruitment to Attorney.
• Send recruitment ad print outs to Attorney.
• Notify Attorney if any layoffs or terminations occur in comparable positions.
• Ensure the immigrant employee is not involved in the PERM recruitment process, interviewing applicants, or screening resumes. Any job description provided by the immigrant employee must be approved by the supervisor and/or HR.
November 2013 © Holland & Hart LLP 2013 26
PERM Interviews• Send prescreening questions via e-mail to applicants for them to respond to each
question.• If applicants respond with “yes” to more than 50% of the prescreening questions,
contact applicants within 2-3 weeks after receipt of resume to conduct a phone interview of the candidate.
• The phone interview should be conducted by whoever normally would interview conduct interviews.
• If applicants fail to reply to an interview invitation, e-mail applicant twice and send a letter via USPS return receipt. Retain a copy of the letter and return receipt.
• Send copies of resumes for disqualified candidates after 35 days of recruitment to attorney.
• Notify Attorney if any layoffs or terminations occur in comparable positions.• Ensure the immigrant employee is not involved in the PERM recruitment process,
interviewing applicants, or screening resumes. Any job description provided by the immigrant employee must be approved by the supervisor and/or HR.
November 2013 © Holland & Hart LLP 2013 27
PERM Recruitment Do’s• Reject applicants who are not a U.S. citizen, permanent resident
(green card holder), asylee or refugee. • Reject applicants who do not have the education, experience or
skills required. Any rejection should be based on the totality of the applicant’s qualification, and not one specific skill or experience.
• Reject applicants who are unavailable for interview or accepted another job with another employer. The employer must show multiple attempts to reach the applicant by phone or by mail.
November 2013 © Holland & Hart LLP 2013 28
PERM Recruitment Don’ts• Reject “overqualified” applicants if the worker is willing to accept the job
at the wage and conditions offered.• Reject U.S. workers who are less qualified than the immigrant employee if
they possess the minimum requirements of the position.• Reject applicants who live outside the geographic area. Applicants who
state that they are not willing to relocate at their own expense may be rejected as unavailable, but do not assume they will not relocate.
• Divert a qualified U.S. worker to another job opening in order to keep the PERM position open.
• Reject applicants for poor communication skills or heavily accented speech. Avoid disqualification based on subjective criteria such as “culture fit.”
• Reject applicants who lack simple skill sets that can easily be gained without significant hardship to the employer.
November 2013 © Holland & Hart LLP 2013 29
Increased DOL Scrutiny
• Audits:► Occurs in 30% of cases nationally► We submit application on-line
• Mail in hardcopy evidence we complied with regulations
• Supervised Recruitment:► Also likely, perhaps for 5% or so of cases
• We advertise again, send resumes to DOL for review• Agency can substitute its judgment for ours
– Don’t need to hire their pick, but PERM would be denied
November 2013 © Holland & Hart LLP 2013 30
PERM Audits • 30 days to provide all recruitment ads, resumes, signed ETA 9089• Common issues:
– Evidence immigrant employee has not paid for PERM costs 20 CFR656.12(b)
– Recruitment Documentation:• Referral Program is dated, connected with the PERM position• Language on all ad postings are identical• Ads reasonably apprise applicants of the job offer
– Degree in Engineering was considered overly broad– Interview all potentially qualified U.S. workers– Substantial equivalency on alternative minimum qualifications
November 2013 © Holland & Hart LLP 2013 31
Advertising Requirements• 20 CFR 656.17(f) Advertising requirements. Advertisements
placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must:– (1) Name the employer;– (2) Direct applicants to report or send resumes, as appropriate for the
occupation, to the employer;– (3) Provide a description of the vacancy specific enough to apprise the
U.S. workers of the job opportunity for which certification is sought;– (4) Indicate the geographic area of employment with enough specificity
to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
– (5) Not contain a wage rate lower than the prevailing wage rate;– (6) Not contain any job requirements or duties which exceed the job
requirements or duties listed on the ETA Form 9089; and– (7) Not contain wages or terms and conditions of employment that are
less favorable than those offered to the alien.
November 2013 © Holland & Hart LLP 2013 32
Travel• Employers must indicate the geographic area of employment with enough
specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. 20 CFR656.17(f)(4)– Is Telecommuting as a benefit allowed?– Indicate any travel requirements in H.14, as well as indications of
possible work sites in the second line of the work address at H.1.– Is the employee living far from the worksite?
November 2013 © Holland & Hart LLP 2013 33
PERM - Layoffs• If an employer has had a layoff of a U.S. worker in the area of intended
employment within the last six months, it must notify and consider any laid off U.S. worker potentially qualified for the job opportunity. 20 CFR656.17(k)
– How has the employer provided notice to laid off workers?– How have laid off workers been considered?
November 2013 © Holland & Hart LLP 2013 34
Denials
• 15-20% of PERM cases are denied. PERM is considered an exacting process.
• May file a Motion to Reconsider with the same Certifying Officer
• May file an Administrative Appeal with the Board of Alien Labor Certification Appeals Decisions
November 2013 © Holland & Hart LLP 2013 35
Resources
• Labor Certification Registry– http://icert.doleta.gov/index.cfm?event=ehLCJRExter
nal.dspLCRLanding• Dept. of State Visa Bulletin– http://travel.state.gov/visa/bulletin/bulletin_1360.html
• Prevailing Wages– http://www.flcdatacenter.com/
November 2013 © Holland & Hart LLP 2013 36
Information for Supervisors and HR
November 2013 © Holland & Hart LLP 2013
PERM Labor Certification Process
Roger Tsai801-799-5976