One important lesson to learn very early on in the practice of PERM labor certification applications is that past certifications do not always mean future certifications. The Department of Labor’s (DOL) approval of scores, even hundreds, of identical PERM applications does not guarantee immunity against a denial citing a previously unheard-of and therefore completely unanticipated reason for denial. And of course, these denials usually arrive on a Friday afternoon, probably just before the start of a 3-day weekend!
As background, the filing of a labor certification application with the DOL is often the first step when an employer sponsors a foreign national for permanent residency. The purpose of the labor certification process, known as PERM, is to ensure that the employer has tested the US labor market for minimally qualified and available US workers at the prevailing wage rate prior to filing a Form I-140, Immigrant Petition for Alien Worker with U.S. Citizenship and Immigration Services (USCIS) to classify the foreign national under either the employment-based second preference (EB2) or the employment-based third preference (EB3).
It has been 18 years since the initial rollout of the ETA Form 9089, Application for Permanent Employment Certification in March 2005, and unbelievably, PERM practitioners are still battling with the DOL on how to complete the form. It is worth noting that the DOL has never provided specific instructions on how to complete the ETA Form 9089. Instead, the DOL has consistently approved PERM applications completed in a particular manner only to then, without warning, start issuing denials for improper completion. Practitioners who probably suffer from anxiety when hitting the “submit” button on any PERM application, will remember that time when the DOL randomly started issuing denials on the basis that Section H.14 of the ETA Form 9089 indicates that a medical or other license is required, but Section K does not list that the PERM beneficiary holds a license. (See Matters of Rite Aid Headquarters Corp., 2019-PER-00055 and 2019-PER-00084 (July 29, 2022) Or, that time just before the 2015 Christmas holidays, when the DOL issued a slew of denials in cases where the employers, in their PERM recruitment, used terms such as “Competitive,” or “Negotiable,” or similar verbiage in lieu of stating the offered salary. (See Matter of Tek Services LLC, 2016-PER-00332 (Nov. 17, 2016). The list goes on. Note that none of these resulted from a change in the law; only in the DOL’s position on what is acceptable.
In the latest saga, in September 2022, the American Immigration Lawyers Association (AILA) first notified its members about the DOL’s inconsistent adjudication of the ETA Form 9089 based on the employer’s answer to question H.10-B. Specifically, question H.10 asks, “Is experience in an alternate occupation acceptable?” If the answer is YES, the employer must answer question H.10-B which states, “Identify the job title of the acceptable alternate occupation”. Many practitioners choose not to list specific job titles in their response but to answer this question more broadly. The DOL suddenly started to deny certification for some applications completed in this manner.
Practitioners answer question H.10-B in a variety of ways. One practitioner may answer listing specific job titles, for example, “Software Developer or Software Analyst”. Another may indicate “Software Developer or a closely similar occupation”; while another may indicate “any job title in an occupation providing the experience listed in box H.14” or “any occupation involving experience as noted in H.14.” Some practitioners have simply responded with “see H.14” or “relevant experience” and then listed the job’s experience requirements in box H.14.
Where the employer provides a broader response, the employer indicates its willingness to cast a wider net and to consider any U.S. worker applicant, regardless of the job titles they held, if they possess the requisite experience. If the employer were to list specific job titles previously held by the foreign national in response to question H.10-B, that could appear to be “tailoring” the alternative requirements to the foreign national’s experience rather than opening it up to suitable alternative combinations. It is impossible for an employer to list all job titles a worker could hold in an acceptable alternate occupation. Moreover, job titles are not dispositive as to whether a worker was engaged in activities that would provide the required experience because many job titles are generic and open to interpretation (e.g., Analyst, Consultant, Manager, Vice President). By providing a broader description in response to question H.10-B, the employer is arguably acting in the spirit of the DOL’s PERM regulations to ensure the protection of potentially qualified U.S. workers. The logic behind why job titles are so critical is unclear and the DOL’s latest slew of denials has provided no clarity on the matter.
In September 2022, when AILA first raised the issue with the DOL’s Office of Foreign Labor Certification (OFLC), OFLC indicated that:
The employers should have specifically identified the job title(s) as requested in the form section field … We need to make sure there is little ambiguity for both our analysts and the employers when filling out the form. If the employer would have said “experience as a [job title] doing A, B and C” would have been acceptable.”
As reports of denials increased, AILA reached out to the OFLC again. OFLC then stated that PERM is an exacting process (an overused excuse for so many decisions) and that employers must answer each question, including the question posed in H.10-B. OFLC indicated that it understands that there may be a variety of relevant specific job titles in which required experience may be gained. OFLC advised that employers may list a specific job title, a number of related job titles, or even language such as “any occupation in which the required experience was gained” but employers still have to answer the question. OFLC indicated that if employers reference box H.14 to answer the question in H.10-B, employers must be sure to actually answer the H.10-B question and that providing a list of requirements alone is not acceptable. In other words, if box H.14 simply states “x years of experience in a, b and c” the DOL will find such a statement to be nonresponsive to the question posed in H.10-B because the employer failed to indicate the relevant job titles or comment on job titles at all.
By February 2023 the number of PERM denials due to the response to question H.10-B continued to rise and what’s more, the DOL started to also deny applications that used the language recommended by the OFLC itself! It was clear that something needed to be done to stop the bleeding. The DOL was also still certifying other identical applications demonstrating that their own Certifying Officers were confused.
On March 14, 2023, the OFLC finally agreed to review cases where the PERM denial was based on question H.10-B. The OFLC apparently recognized the inconsistencies in their adjudications and agreed to review applications where the employer filed a Request for Reconsideration (“RFR”) based on the question H.10-B denial. In instances where the reason for denial is question H.10-B only, the OFLC agreed to pull the case out of the usual order to review and certify the application where appropriate.
Based on this announcement, AILA advised practitioners who have received a denial of Form ETA 9089 based on question H.10-B, to file an RFR with the DOL clearly indicating that the case was denied on the basis of question H.10-B. Practitioners who have already filed an RFR or who have a PERM application pending need not take any action at this time. AILA’s DOL liaison committee is also following up regarding available options for practitioners who did not file an RFR by the 30-day filing deadline.
This latest saga has been extremely frustrating for practitioners who have received denials. Due to prevailing wage determination backlogs, it has been taking over a year just to prepare and file a PERM application. Once filed, the PERM application processing time stands at 8-9 months. To receive a denial at the end of such a long wait, and on a previously unheard-of basis at that, can be demoralizing and the fallout could be catastrophic. It could affect children who are close to aging out. It could affect foreign nationals in L-1B status who have no ability to continue to extend their status beyond the 5-year maximum. The DOL has constantly expressed that they are understaffed, lacking in funds and weighted down by the backlogs. It is not clear what is expected now that practitioners are forced to file hundreds of RFRs! It is a complete waste of resources that could be allocated to decreasing the existing backlog. At this point, the DOL should stop the denials; reopen all cases denied on the basis of question H.10-B; and adjudicate them under the rules that existed prior to this latest bloodbath. The DOL can then issue clear guidance on how the agency wants this question to be answered going forward.
In the end, this is a reminder to never take the PERM process for granted. PERM is an adversarial process and the DOL will always find new reasons for denial. Unfortunately, in the hyper technical process that is PERM, the DOL is less concerned with an employer’s good faith intentions in responding to a question than it is with the actual response. But while we are still fighting and still confused on how to answer questions 18 years after the initial launch of the ETA Form 9089, it is expected that the DOL will launch a new ETA Form 9089 by the end of 2023, potentially leading to new questions and new battles over how that form must be completed. PERM is the gift that will keep on giving.