Fragomen reply materials part 3

Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 1 of 45 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA FRAGOMEN, DEL REY, BERNSEN & LOEWY LLP, Plaintiff, v. ELAINE L. CHAO, Secretary of Labor, and the U.S. DEPARTMENT OF LABOR, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) Civ. No. 08-1387 (RMU) SUPPLEMENTAL DECLARATION OF MICHAEL D. PATRICK MICHAEL D. PATRICK declares pursuant to 28 U.S.C. § 1746: 1. I am a partner in the law firm Fragomen, Del Rey, Bernsen & Loewy, LLP (“Fragomen”), the plaintiff in this action. I respectfully submit this supplemental declaration to provide further information to the Court in support of plaintiff’s motion for a preliminary injunction. This declaration is based on my personal knowledge and on information in the possession of my firm. information, and belief. 2. I have reviewed the Declaration of William Carlson dated August 29, Everything stated herein is true to the best of my knowledge, 2008 that defendants submitted in response to our motion. While the attorneys at our firm believe that this declaration is replete with mischaracterizations and casts unfounded aspersions Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 2 of 45 on our integrity, I will focus in this supplemental declaration on the matters that we believe are most relevant to the legal issues that have been presented to the Court on this motion. A. Additional Background on the Labor Certification Process 3. As I explained in the declaration I previously signed on August 7 (Declaration of Michael D. Patrick dated August 7, 2008 (the “August 7 Declaration”) ¶¶ 12-25), an immigration lawyer’s assessments and comments about the qualifications of an applicant are fundamentally legal judgments. The labor certification process requires applicants to be evaluated based on a standard of “minimal” qualifications that was created by the Department’s legal regulations and deviates in numerous respects from the standards employers apply in their typical recruiting. Employers retain counsel precisely because they want and need help in ensuring that their determinations comport with an unfamiliar legal definition of what it means to be “qualified.” 4. To assist the Court in understanding the extent to which legal judgments infuse the PERM process and the assessment of applicant qualifications, I am providing the attached Exhibit A, which is a further description of the steps in the PERM process, and the attached Exhibit B, which is an annotated version of the ETA 9089 labor certification application form illustrating some of the numerous legal issues that must or may be confronted.1 Those issues include (among other matters) whether an applicant is a “U.S. worker” who must be considered, whether a job applicant’s degree would be viewed by the DOL as equivalent to the 1 This declaration and its exhibits are being filed electronically in .PDF format. When Exhibit B is printed from the PDF, in order to print the annotations, it is necessary to select “Documents and Markups” in the Print dialog box under the heading “Comments and Forms.” -2- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 3 of 45 degree sought by the employer, and whether DOL regulations and precedent would deem an applicant minimally qualified because he or she could receive on-the-job training. 5. In addition, I wish to call to the Court’s attention one particular aspect of the process that illustrates one of the reasons we believe it is appropriate for the Court to address the issues raised by our motion notwithstanding defendants’ claim of mootness. 6. As explained in Exhibits A and B and in our moving brief, the recruitment process in the labor certification context unfolds before any application is filed with the Department of Labor (the “Department”). An employer can file a PERM case with the Department only if it completes the recruitment process and finds no qualified, willing, able, and available U.S. worker applicant. If, on the other hand, a qualified, willing, able, and available U.S. worker applicant is identified, a PERM application should not be filed. 7. We believe that the Department’s still-in-force policy, as set forth in the guidance issued on August 29, infringes constitutional rights by limiting Fragomen’s ability to give legal advice to clients about how the Department’s regulations apply in particular recruitment situations. In some cases, this is likely to lead to employers’ incorrectly concluding that a PERM case may not be filed because of a misunderstanding about the legal requirements. There will be no alternative opportunity for judicial review in these situations because the PERM application will never be filed in the first place. B. Post-Lawsuit Retaliation Against Fragomen By The Department 8. The injuries our firm has suffered have been magnified by retaliatory actions that the Department and Dr. Carlson, the Administrator of the Department’s Office of -3- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 4 of 45 Foreign Labor Certification (“OFLC”), took against our firm after we filed this lawsuit to vindicate our rights. 9. On July 31, 2008, the Department approved a form of “Certification” that Fragomen clients could submit in an effort to remove some of their labor certification applications from the Department’s special Fragomen-targeted audits. The Certification asked employers to attest, among other things, that in the course of recruitment for their PERM labor certification applications, they did not have any of the types of consultations with their Fragomen attorneys that were prohibited under the Program Guidance Bulletin released by the Department on June 13, 2008. (See Complaint Ex. H (Approved Certification); Complaint Ex. F (June 13 Guidance Bulletin).) 10. Also on July 31, our outside counsel e-mailed the Solicitor of Labor to confirm that any certification forms would be mailed to Fragomen, which had entered appearances for the clients, rather than to the clients directly. The Department’s regulations expressly require that official PERM-related communications to represented employers shall be sent to counsel, rather than directly to the clients. See 20 C.F.R. § 656.10(b)(1) (“Whenever, under this part, any notice or other document is required to be sent to the employer, the document will be sent to the attorney or agent who has been authorized to represent the employer on the Application for Permanent Employment Certification form.”). The Solicitor confirmed that the certification forms would be mailed to Fragomen rather than to its clients. See the accompanying Declaration of Aaron R. Marcu dated September 9, 2008 (“Marcu Declaration”) Ex. A. 11. On or about August 18, 2008, we learned that our clients were receiving certification forms by regular mail directly from Dr. Carlson. Attached to the forms were cover -4- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 5 of 45 letters dated August 15, a week after the filing of this lawsuit and this motion. The cover letters reiterated the Department’s accusations about the firm’s professional competence and integrity, as they described the Fragomen special audits and stated that they were initiated “as a result of information made available to the [OFLC] indicating that some applications filed by Fragomen may in some instances not have complied with the Department’s permanent labor certification regulations at 20 CFR 656.10(b)(2).” The letters also directed the clients to a website link to the Department’s June 13 Guidance Bulletin. In addition, the letters sought to exert pressure by declaring that employers must submit the certification within 30 days, a time frame which was likely to expire before the Court had an opportunity to rule on the pending injunction motion and pass on the legality of the Department’s conduct. A copy of an example of a cover letter and certification form received by a Fragomen client, with the client’s name redacted, is attached hereto as Exhibit C. 12. These direct mailings to clients trumpeted the Department’s unfounded accusations about our competence and integrity and caused further damage to client relationships that in many cases were already fragile as a result of the initiation of the special audits. 13. We believe that this incident constituted retaliation for our attempt to assert our rights through the judicial system, and was not a good faith error by Dr. Carlson. As noted above, the Department’s regulations expressly require, and the Solicitor expressly agreed in advance, that the certifications would be sent to Fragomen, which was counsel of record for the clients for PERM purposes. After the incident occurred, the Solicitor confirmed that he had instructed OFLC to send the certifications to Fragomen and not directly to its clients. See Marcu Declaration Ex. B. Moreover, the cover letter and certifications were disseminated in a way that was calculated to maximize injury to the firm’s client relationships without regard to the -5- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 6 of 45 underlying reason for the certification, which was the possibility of extricating some cases from the special audit. Specifically, the cover letters and certifications in many cases were sent to clients who could not possibly benefit from a certification, either because they had no PERM cases pending in audit, or because they had three or fewer cases in audit. (The certification purports to offer the possibility of extricating 80 percent of a client’s cases in audit, but the Department has indicated that it in all situations it will retain in audit a minimum of three cases for each client, regardless of the certification. See Ex. C attached hereto.)2 14. As the Court is now aware, on August 29, 2008, only 11 days after Fragomen clients began receiving the certification forms and cover letters, the Department revoked the June 13 Guidance Bulletin on which the certification form had been explicitly based, and replaced it with a new “restated” Guidance Bulletin that eliminated one of the key provisions to which clients were required to attest in the certification forms. I understand that a copy of the August 29 document was attached as an Exhibit to the memorandum of law the defendants submitted to this Court later that same day. 15. While the Department’s certification purports to require employers to certify compliance with standards of conduct that the Department has now abandoned – apparently because the Department now agrees that they cannot be legally defended – the In at least one case, a client received the certification, signed it, and sent it back to the Department before we had a chance to provide guidance to the client about the legal ramifications of the certification process. The contact at this client became very upset when we subsequently explained to him (after we became aware of the situation) that the certification process would be of no use because the client had only one application in audit. 2 -6- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 7 of 45 Department to my knowledge has made no attempt as of this writing to rescind or modify the certification forms. C. Irreparable Injury 16. The Declaration I signed on August 7 described the significant harms that the Department’s actions have visited on our firm. (See August 7 Declaration ¶¶ 53-62.) While we believe that the information in that Declaration was sufficient to establish the type and magnitude of harm needed to support a preliminary injunction, I provide below additional details about the ordeal our firm has been suffering. Difficulties in Quantifying the Amount of Lost Business 17. While we know that the Department’s actions have inflicted massive injury to our reputation and are directly responsible for lost business with many clients, the true aggregate dollar impact of the harm is difficult to assess and quantify. 18. Many of our competitors have sought to exploit the sense of “taint” created by the Department’s special audits and public statements impugning our integrity, and have encouraged Fragomen clients and client prospects to use their firms instead of ours. 19. Fragomen has become aware of several of these attempts, but has no way to know how many other such attempts have occurred. It would be difficult or impossible to quantify the lost business impact resulting from such overtures in situations where we are not even aware that the overtures have been made. 20. become aware: The following are some examples of these attempts of which we have -7- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 8 of 45 a) On June 20, 2008, the immigration firm Zulkie Partners LLC (“Zulkie”) e- mailed a Fragomen client that had previously been a client of Zulkie, attaching the Department’s June 2 press release trumpeting the Fragomen special audit. The e-mail stated, in pertinent part (client’s name redacted): Per the Department of Labor’s recent press release (see attached), DOL is auditing all labor certification applications filed by Fragomen. If you need any assistance responding to Department Of Labor audits on [CLIENT’S] labor certifications filed by Fragomen, or filing any new applications, please don't hesitate to contact us. … We very much valued our relationship with [CLIENT] and would love to continue it if it doesn’t work out with your new vendor. b) On August 20, 2008, the Law Office of Richard J. Block, P.C. (“Block”), another immigration services provider, e-mailed a Fragomen manufacturing client that had previously been a client of Block, attaching a copy of the Department’s June 4 Information Paper that described the Department’s rationale for the Fragomen special audits. The e-mail stated (emphasis added): As you may have heard, the law firm Fragomen, Del Rey is now in litigation [sic] with the U.S. Department of Labor. The litigation was prompted by the DOL’s pronouncement that all PERM labor certifications filed by that particular law firm would be audited because of the belief that “the firm may have improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers.” DOL audits add time and expense to an already lengthy and expensive process. In light of this development, I am wondering if you would be interested in reconsidering using our firm’s services. We have had an excellent success rate with the PERM applications we have filed since the program began in 2005. We are smaller than Fragomen, but I am confident we can provide you with a superior level of service at even lower rates. And perhaps more importantly, our firm’s labor certification filings will not be subject to an automatic audit. Please feel free to call or email if you have any questions or would like to discuss further. Best Regards. -8- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 9 of 45 c) The immigration law firm Litwin & Associates has posted an “Important Announcement” on its website entitled “DOL Audits All Labor Cert Applications Filed by the Fragomen Law Firm.” The announcement quotes the Department’s public statements accusing Fragomen of “improper attorney involvement in the consideration of U.S. worker applicants” and predicts “DELAYS OF ALL FRAGOMEN CASES – PRESENT AND FUTURE.” (all caps and bold in original). The announcement includes a prediction that Fragomen clients will switch to other firms, and states that “[o]ur office has already had conversations with a number of people who are looking for alternatives to Fragomen processing their cases, along with its guaranteed audit.” The announcement concludes with the statement: “We continue, as in the past, to maintain the highest levels of integrity for both our clients and ourselves, so that the Dept. of Labor will not be tempted to audit any of our clients’ cases, at least, on a wholesale basis.” A copy of the complete statement is attached hereto at Exhibit D. d) We have been made aware by several clients that our competitors have approached them since June 2 to pitch for their business, and have cited the DOL special audits as a reason why they should stop using Fragomen. The clients who have brought these examples to our attention include a computer company, an insurance company, multiple educational institutions, a utility company, and a telecommunications network systems company. Specific Examples of Impaired or Destroyed Client Relationships and Lost Business 21. PERM applications represent a significant portion of our firm’s business. In addition, the Department’s damaging actions against our firm in the PERM context have a negative multiplier effect on our business. When clients decide not to use our firm for a PERM -9- Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 10 of 45 case, this usually causes us also to lose revenue we would earn from handling other aspects of the multi-step green card process. In addition, clients often like to have a single immigration law firm handle the various types of immigration legal services they regularly need. Clients that have stopped using us for PERM cases because of the special audit situation in many cases have also stopped using us for other immigration services. 22. We estimate that our firm will suffer more than $20 million of economic harm as a result of the disruptions that have flowed from the Department’s actions. 23. The following are concrete illustrations of situations where our client relationships were seriously injured and we lost business as a direct result of the Department’s special audit campaign against our firm. For confidentiality reasons, the names of the particular clients involved are omitted. ■ A technology industry client which accounted for approximately $1.6 million of revenue last year recently terminated its relationship with our firm on account of the special audits. ■ Earlier this week, an insurance company with which we have had a strong business relationship for more than a decade terminated use of our firm’s services entirely, principally as a result of the special audit situation. This client accounted for over $800,000 of annual fee revenue. ■ A computer systems company client significantly reduced the number of immigration cases it sends to Fragomen following pressure from personnel who viewed Fragomen’s reputation as “tainted” by the special audits. This client relationship produced over $575,000 in fee revenue last year. - 10 - Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 11 of 45 ■ In the middle of a recent RFQ (request for quotation) process with a manufacturing client, the client’s general counsel received one of the certification forms that, as noted above, were improperly sent by the Department directly to clients instead of to Fragomen. This direct communication led the client to the view that the special audits were creating too much visibility, and has diminished our chances of winning this business. This jeopardized client relationship produced over $570,000 in fee revenue last year. ■ Fragomen was disinvited from participation in an RFP process organized by an energy company for U.S. and global immigration work after the company became aware of the Department’s special audits. This was an opportunity for $300,000 to $350,000 in annual fee revenue. ■ A financial services industry client advised us that based on the disputes arising from special audits, the client would be using another law firm for all new PERM Labor Certifications. Fees for work on PERM cases and follow-up green card applications for this client have totaled approximately $300,000 annually. ■ Our firm recently was not selected by a different energy company to handle PERM cases that will produce $200,000 to $300,000 of fee revenue over a two-year period; the company informed us that the decision was “very close,” but they decided to use a competitor largely because they were concerned about the special audits. ■ A software company recently declined to retain the firm to handle several new PERM cases, explaining: “Unfortunately, in light of the recent audit circumstances I cannot move forward at this time.” This was an opportunity for approximately $100,000 in annual fee revenue. - 11 - Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 12 of 45 ■ A manufacturing client took all PERM cases away from our firm shortly after the June 2 Press Release. This client had accounted for over $59,000 in year-to-date fee billings. ■ A computer company client transferred several PERM cases to another firm specifically as a result of the special audits. ■ An in-house attorney at a telecommunications client transferred new PERM cases and some already in progress PERM cases from our firm to another firm as soon as he heard about the special audits. ■ A food products company that used our firm through a relocation services company that is a client of Fragomen instructed the relocation company not to use Fragomen for any immigration services in light of the special audits. Impact of the Special 100 Percent Audit Program 24. Dr. Carlson suggests in his declaration that Fragomen has exaggerated the impact of the special audit program because many Fragomen-filed labor certification applications would have been subject to regular audits by the Department for reasons unrelated to the unlawful policy that the Department has now withdrawn. (See Carlson Decl. ¶ 29 n.1.) But the special audit program is materially different both in degree and kind from the ordinary audits the Department conducts. 25. Information published recently by the Department indicates that as of May 31, 2008, 44 percent of all active PERM cases were in audit. (See the attached Exhibit E.) A policy that indiscriminately places 100 percent of all cases filed by my law firm in audit is a significantly greater burden on our ability to practice and provide service to our clients in the labor certification area. In addition, as explained above, the announcement of the audits in a - 12 - Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 13 of 45 public press release that made accusations about our firm’s competence and integrity caused damage to our firm’s reputation in a way that is not remotely comparable to the experience of being subject to the Department’s regular audit rate. 26. In addition, while many cases filed by our firm were already in audit at the time the mass audit program was announced, those cases received supplemental audit notices as part of the mass audit. Under the Department’s first in, first out (FIFO) system for processing audits, the issuance of these supplemental notices subjected the already-in-audit cases to additional delays that are likely to add several months to processing times. [Balance of Page Left Blank Intentionally] - 13 - Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 14 of 45 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 15 of 45 Supplemental Declaration of Michael D. Patrick EXHIBIT A Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 16 of 45 SUMMARY OF LABOR CERTIFICATION PROCESS AND ROLE OF ATTORNEY The labor market test mandated by the permanent foreign labor certification (PERM) regulations obligates employers to establish a special recruitment methodology that differs markedly from an employer’s normal recruitment efforts. Under the Department of Labor’s (“DOL”) methodology, a U.S. worker applicant who is “minimally qualified” must be preferred over a non-citizen who may be better educated, more experienced, and clearly more qualified for the job. Employers are required to (1) create a recruitment process that differs from its normal in-house procedures in non-labor certification cases; (2) state position requirements that frequently differ from the requirements the employer would apply in non-labor certification cases; (3) evaluate applicants based on DOLmandated standards which bar normal hiring criteria any reasonable employer would apply in the normal course; (4) understand special rules for all stages of the PERM process, including legal standards and terms of art that are relevant only for labor certification and not in the normal recruitment environment; (5) determine how to set forth their recruitment efforts, job duties, and position requirements within the confines of DOL’s on-line application format, which sanctions employers for even innocent clerical errors in completing the form; (6) file applications under penalty of perjury despite confusing standards and processes under PERM; and (7) maintain documentation of their compliance in the event of random or targeted audits. The complicated rules for recruitment under PERM actually require employers to deviate from their normal course of business in evaluating the qualifications of U.S. applicants, and require employers to make complex legal judgments which play no role in normal recruitment and can only be properly accomplished with the assistance of qualified legal counsel. Accordingly, employers rely on advice of counsel “throughout the labor certification process.” See 20 C.F.R. § 656.10(b)(1). The following abbreviated timeline provides an overview of the basic steps in the labor certification application process and highlights some of the specific terms of art, atypical recruitment requirements, and other peculiar legal imperatives to which employers are subject and for which they rely on legal advice:1 Entire books have been written on the topic of labor certification, so this summary is necessarily limited. See, e.g., Gonzalez, Josie and Greenfield, Ester (eds.), The David Stanton Manual on Labor Certification (3rd edition.), published by the American Immigration Lawyers Association (AILA, 2005); Fragomen, Austin T., Jr., Shannon, Careen and Montalvo, Daniel, Labor Certification Handbook (2007-08 edition), published by Thomson-Reuters (2008); Stewart, Joel, The PERM Book (2008-09 edition), published by ILW.COM (2008). 1 Page 1 of 8 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 17 of 45 1. Determining whether a labor certification is needed in order for the employer to sponsor a foreign national (FN) for permanent employment, or whether the FN’s job and qualifications fall into one of the immigrant visa categories where a labor certification is not required. 2. Determining the timing for initiating the green card process. Factors to examine include the FN’s education and experience, the employer’s business needs, the FN’s current nonimmigrant visa (NIV) status, the amount of time (months or years) that remains of the FN’s NIV status, and family issues (a spouse desiring work authorization, a child who will turn 21 and therefore “age out” of eligibility for derivative permanent residence, etc.). 3. Determining, based on the anticipated length of the entire application process (which may range from 2 to 7 years),2 whether the employer should recruit for the position the FN currently holds, or the position the FN is likely to hold in 2-7 years. 4. Drafting the position description (“job duties”) and selecting from the range of education and experience requirements (“job requirements”)3 the employer would normally seek in the best qualified candidate in order to conform to the rule that the application and recruitment must include only the absolute minimum educational and experience requirements for the job,4 keeping in mind that unlike 2 Currently, labor certification processing times range from approximately 9 weeks to more than 12 months. If the labor certification application is approved, the second stage of the process is for the employer to file a Form I-140 Petition for Immigrant Worker on the foreign employee’s behalf with U.S. Citizenship & Immigration Services (“USCIS”), which is currently taking approximately 12-16 months for USCIS to adjudicate. The final step in the process is for the foreign national to apply for adjustment of status to permanent residence by submitting an application to USCIS (approximately 14 months) or applying for an immigrant visa at a U.S. consular post abroad (6-12 months). In addition to government processing times, employers and beneficiaries must take into account the annual limits on issuance of immigrant status, and the backlogs that develop as a result. 3 The distinction between job duties and job requirements is key under PERM. As one commentator has explained: “The issue of job duties (what the job consists of) and job requirements (prerequisites to be able to fill the position) is rich with opportunities for failure in a PERM application. The care and precision needed to draft these accurately go well beyond what the average employer considers in going about its daily business. The employer’s attorney can be invaluable in asking the employer the right questions, some of which the employer may not have considered before, and in explaining the impact of the answer to the employer.” See Mailman and Yale-Loehr, Immigration Law and Procedure, § 44:12[5][b]. See, e.g., Clark, Steven A., “Actual Minimum Requirements Under PERM,” David Stanton Manual on Labor Certification 71 (2005-06 ed.), published by American Immigration Lawyers Page 2 of 8 4 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 18 of 45 in real world recruiting, any requirements that exceed the DOL’s job descriptions in the Occupational Information Network (O*NET)5 or that exceed the Specific Vocational Preparation (SVP)6 level set out in the DOL’s Occupational Employment Statistics (OES) will be considered by DOL to be “unduly restrictive” unless the employer can document that they arise from a so-called “business necessity.”7 It is often necessary for an employer to understate the real requirements for the job in order for the application to pass muster with the DOL.8 Exhibit B to this supplemental declaration is an annotated version of Form ETA-9089, the Application for Permanent Employment Certification that employers must complete and submit to DOL. This exhibit identifies some of the difficult issues on which employers filing labor certification applications seek legal counsel. 5. Determining which other real world requirements must be put aside in order to conform to PERM mandates, such as (1) the FN’s experience with the employer; (2) the fact that the employer would really prefer to hire someone with 10 years of previous experience for the specific job offered (and has always done so in the past), but DOL only recognizes that 2 years of experience should be required for the corresponding broad job category as described in O*NET; or (3) Association (2006); Guevara, Rómulo E., “Labor Certifications and the Law of Recruitment,” Immigration and Nationality Handbook 424 (2006-07 ed.), published by American Immigration Lawyers Association (2008); and Pelta, Eleanor, “Brave New World: Minimum Requirements, Business Necessity, and Alternative Minimum Requirements,” David Stanton Manual on Labor Certification 63 (2005-06 ed.), published by American Immigration Lawyers Association (2006). O*NET is the on-line “Occupational Information Network,” upon which the DOL relies for information on occupations that exist in the U.S. economy. See http://online.onetcenter.org. Occupations are grouped within O*NET into one of five “job zones” based on the amount of preparation needed to perform the job, ranging from Job Zone 1 (occupations that need little or no preparation) to Job Zone 5 (occupations that need extensive preparation). Each Job Zone, in turn, is associated with a Specific Vocational Preparation (SVP) level ranging 1 to 9. SVP is defined as the amount of time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. See generally “The ‘New Normal’ Job Requirements: Understanding O*NET and Its Role Within PERM,” by William A. Stock and Geoffrey Forney, David Stanton Manual on Labor Certification 25 (2005-06 ed.). 6 7 5 See 20 CFR § 656.3. See, e.g., Matter of Information Industries, Inc., 1988-INA-82 (BALCA Feb. 9, 1989) (en banc) [setting forth the business necessity standard for job requirements that DOL would consider unduly restrictive in the labor certification context], now codified at 20 CFR § 656.17(h)(1). See e.g., Mailman and Yale-Loehr, Immigration Law and Procedure, § 44:12[5][e]. 8 Page 3 of 8 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 19 of 45 the fact that the job offered has always been performed by an employee with certain foreign language skills but the employer cannot document the need for foreign language fluency under DOL’s regulatory criteria.9 6. Drafting alternative experience requirements in those cases where an employer is willing to accept more than one set of minimum requirements, even if the employer would not normally articulate each and every alternative set of previously acquired job skills it would be willing to accept. Here, employers also must keep in mind that in the next step of the green card application process when the employer must file an immigrant petition on the FN’s behalf, USCIS will reject equivalencies that the employer might normally accept (e.g., a Bachelor’s degree plus three years of experience in lieu of a Master’s degree—USCIS has taken the position that a Master’s degree is equivalent to a Bachelor’s degree plus five years of experience) and which DOL might find sufficient for purposes of approving the labor certification application.10 7. Determining when the employer must evaluate applicants based upon whether they possess “any suitable combination of education, training or experience.”11 DOL regulations require that the employer apply this standard when the foreign national worker is already employed by the employer and only qualifies for the position by meeting secondary or alternative job requirements. To do so properly, it is necessary to understand the difference between primary and alternative requirements (which is generally an artificial distinction in real world recruitment) as set out on the labor certification application. Employers must also look ahead to how USCIS is likely to classify an immigrant petition for which the minimum requirements are “any suitable combination.” This may have an impact on the immigrant visa category and the number of years before the foreign worker can ultimately be granted permanent residence based on percountry limits and processing backlogs. 8. Obtaining a prevailing wage determination for the job from the appropriate State Workforce Agency (SWA), keeping in mind specific regulatory requirements (such as the fact that an employer who normally pays workers, in whole or in part, with commissions or bonuses cannot include this in the wage unless the employer guarantees a salary paid on a weekly, bi-weekly, or monthly 9 See 20 CFR § 656.17(h)(2). See 20 CFR § 656.17(h)(4). See 20 CFR § 656.17(h)(4)(ii). 10 11 Page 4 of 8 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 20 of 45 basis that equals or exceeds the prevailing wage)12 and the fact that prevailing wage determinations are issued with reference to the DOL’s Occupational Employment Statistics (OES) which are produced only for approximately 800 occupations.13 9. Engaging in the detailed recruitment procedures mandated in the PERM regulations, which differ dramatically from real world recruitment. For example, a job order with the State Workforce Agency and two print ads are mandatory for all labor certification cases (except for applications for certain college and university professors).14 There are also specific requirements for notice to the employees or their bargaining representative,15 specific rules for the types of publications in which print ads must appear and the day of the week when they must run, rules about the information that must be included in the ad, additional steps if the occupation is designated “professional,” and strict time parameters within which all recruitment must occur.16 10. Understanding the impact of any recent layoffs on the labor certification process,17 and understanding which laid-off U.S. workers must be notified and considered for the job opportunity for which labor certification is sought. 11. Understanding who is considered a “U.S. worker” for purposes of recruitment under PERM, since the term is not equivalent to a U.S. citizen. A U.S. worker may also be a U.S. national; a person lawfully admitted to the United States for permanent residence; a person granted the status of an alien lawfully admitted for temporary residence; a person admitted as a refugee; or a person granted asylum.18 12 13 14 See 20 CFR § 656.10(c)(2). See the Bureau of Labor Statistics OES Web site at http://www.bls.gov/OES. According to the author of a recent policy brief on the labor certification process, “[t]he process bears no resemblance to the reality of how companies actually recruit, with few employers using print ads for highly skilled positions, as DOL requires for labor certification, and most engaging in ongoing use of the Internet, networking and employee referrals.” Anderson, Stuart, “Certifiable: The Department of Labor’s Approach to Labor Certification,” National Foundation for American Policy (NFAP) Policy Brief (July 2008), available at http://www.nfap.com/pdf/080731laborcertification.pdf. See 20 CFR § 656.10(d). See 20 CFR §§ 656.17(e) and (f). See 20 CFR § 656.17(k). See 20 CFR § 656.3. Page 5 of 8 15 16 17 18 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 21 of 45 12. Determining whether a U.S. worker applicant meets the statutory and regulatory criteria of being able, willing, qualified, and available for the job offered.19 This is a complex analysis which ideally should begin with an initial screening of résumés by sorting them into three groups: (1) job applicants who clearly do not meet the employer’s stated minimum requirements; (2) job applicants who might meet the employer’s minimum requirements but from whom more information is needed; and (3) job applicants who appear to meet the employer’s minimum requirements. In conducting this review, employers need to keep in mind certain basic guidelines for the evaluation of U.S. job applicants in the labor certification process which are often diametrically opposed to their normal recruitment procedures and of which, for this reason, they would normally be unaware without legal counsel, including the following: • • Job applicants who appear to be “overqualified” must be considered for the position and should be included with the third group above. Job applicants who appear to be qualified, but are less qualified than the FN, must also be considered for the position and should be included with the third group above. Job applicants who state career objectives on their résumé that do not match the job opportunity must be evaluated strictly on the basis of their qualifications; the employer should ignore statements of goals or career objectives in conducting the résumé evaluation. Job applicants whose résumés show that they meet a broad requirement (e.g., an M.B.A. degree), but do not show that they meet a narrow requirement premised on the broad requirement (e.g., a particular major or course work), should be included in the second group, so that a more complete version of their credentials can be evaluated. Job applicants who meet the major job requirements listed on the PERM application but whose descriptions of job experience do not include every job duty listed by the employer, should be included in the third group, so that more information can be obtained concerning the applicants’ prior employment. • • • See INA § 212(a)(5)(A)(i), 8 U.S.C. § 1182(a)(5)(A)(i), and 20 CFR §§ 656.1(a)(1), 656.2(c)(1)(i). Clearly, simply being “qualified” (i.e., meeting the minimum requirements set out in the employer’s labor certification application) is not sufficient under the Immigration and Nationality Act. 19 Page 6 of 8 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 22 of 45 • Job applicants whose résumés show that they have experience performing the major job duties for the position when experience in the position offered is listed as a requirement should be included in the second group, even if the applicants did not hold a specific job title while performing such duties. Job applicants whose résumés clearly show that they do not meet a specific requirement (e.g., résumé shows that person only holds a high school diploma when a Master’s degree is a minimum requirement) can be included in the first group. • The determination of whether an applicant meets the minimum qualifications based on the applicant’s résumé involves applying the law to specific facts. For example, even U.S. worker applicants who at first glance might appear to be “qualified” might not meet the “able, willing, qualified and available” standard in certain cases, such as where the “qualified” applicant is not ready or available for the job (e.g., she wants to take the job but does not want to start for six months), or where the “qualified” applicant is unacceptable because of unstated job requirements (e.g., proficiency in English, which even if not listed as a requirement on the application is an inherent job requirement;20 bad references indicating applicant is undependable;21 demonstrable incompetence at interview22). Immigration attorneys—given their role throughout the entire labor certification application process—have an understanding of why the job requirements were expressed the way they were in the employer’s recruitment, and are therefore uniquely equipped to assist clients in determining whether a particular candidate meets the DOL’s standards of being qualified for the job offered.23 13. Determining whether a U.S. worker applicant’s degree is in a relevant field, such as whether a person with a Master’s degree in Electrical Engineering is 20 21 22 23 See Ashbrook-Simon-Hartley v. McLaughlin, 863 F.2d 410, 415 (5th Cir. 1989). See Matter of Alfredo’s Restaurant, 1990-INA-70 (BALCA, June 12, 1991). See Matter of The Madison School, 2000-INA-52 (BALCA, Mar. 30, 2000). Because the PERM requirements are so complex and different from normal evaluation procedures, attorneys often provide the employer with some kind of written guidance or checklist to assist the interviewer in evaluating applications. See, e.g., “Tips for Evaluating Applicants and Evaluation Sheet,” courtesy of attorney Norman C. Plotkin, David Stanton Manual on Labor Certification 239, which includes interview “Do’s and Don’t’s” followed by an Evaluation Sheet for the interviewer to fill out after the interview; see also the Applicant Screening/Interview Guide (courtesy of attorney C. Ryan Cook) at David Stanton Manual on Labor Certification 243. Page 7 of 8 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 23 of 45 qualified for a position for which the employer normally requires a Master’s degree in Information Systems. This may require the employer to document the business necessity of the degree requirement, which is not something employers typically need to do in real world recruitment. 14. Determining whether a U.S. worker applicant could, within a reasonable period of on-the-job training, become “qualified” notwithstanding the fact that at the time of application, he or she does not possess a specific requirement for the job. 20 C.F.R. § 656.17(g)(2) provides that “[a] U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Rejecting U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-thejob training[,] is not a lawful job-related reason for rejection of the U.S. workers.” What is a “reasonable” period of training is a fact-specific question that depends on the employer’s particular business needs. In real world recruitment, an employer would generally opt for the candidate who already possesses the required skill over the candidate who does not, but under PERM, the employer must be advised that this is not necessarily possible.24 15. Preparing the recruitment report which is required pursuant to the DOL’s regulations, describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job-related reasons for such rejections.25 See e.g. Weaver, Mary Jane, “Defining a Qualified Worker—Origins of ‘Reasonable Period of On-the-Job Training,’” David Stanton Manual on Labor Certification 95 (2005-06 ed.), published by American Immigration Lawyers Association (2006). 25 24 20 CFR §§ 656.17(g)(1), 656.21(e). Page 8 of 8 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 24 of 45 Supplemental Declaration of Michael D. Patrick EXHIBIT B Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 25 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor Please read and review the filing instructions before completing this form. A copy of the instructions can be found at http://workforcesecurity.doleta.gov/foreign/. Employing or continuing to employ an alien unauthorized to work in the United States is illegal and may subject the employer to criminal prosecution, civil money penalties, or both. A. Refiling Instructions 1. Are you seeking to utilize the filing date from a previously submitted Application for Alien Employment Certification (ETA 750)? 1-A. If Yes, enter the previous filing date Yes No 1-B. Indicate the previous SWA or local office case number OR if not available, specify state where case was originally filed: “doing business as Avoid [dba]” name if possible as B. Schedule A or Sheepherder Information DOL may not be able to confirm company's 1. Is this application in support of a Schedule A or Sheepherder Occupation? existence. Yes If Yes, do NOT send this application to the Department of Labor. All applications in support of Schedule A or Sheepherder Occupations must be sent directly to the appropriate Department of Homeland Security office. C. Employer Information (Headquarters or Main Office) 1. Employer’s name Use the headquarters address, and not the address where beneficiary will work. No 2. Address 1 For large companies, Address 2 determine which entity will be the Use the switchboard phone number, foreign national's 3. City State/Province Country not the contact's direct line. DOL will actual employer: check to see if this phone number the FEIN can 4. Phone number Extension matches that on IRS or commercial have implications databases to determine if the employer for applying the 5. Number of employees 6. Year commenced business is a legitimate company. rule that the employee cannot 7. FEIN (Federal Employer Identification Number) 8. NAICS code qualify for the labor certification 9. Is the employer a closely held corporation, partnership, or sole proprietorship in job based on No which the alien has an ownership interest, or is there a familial relationship between Yes experience gained the owners, stockholders, partners, corporate officers, incorporators, and the alien? A "Yes" answer to this after the date of question will almost hire. See 20 CFR D. Employer Contact Information (This section must be filled out. This information must be different from the certainly flag the case for 656.17(i)(5). agent or attorney information listed in Section E). If company has small an audit, in which case the burden will be on the 1. number of last name Contact’s employees, First name Middle initial DOL is likely to audit the employer to provide documentation showing a 2. application and request Address 1 copies of the articles of bona fide job opportunity organization, list of exists that is truly Address 2 Filling out the Employer Contact shareholders, their available to U.S. Information is not as simple as it applicants. Postal code The 3. relationship to the foreign City State/Province contact in Country seems. The employer national, etc. determination will be Section D does not have to be the governed by the criteria in 4. Phone number Extension hiring authority, but it must be Matter of Modular someone who can be contacted for Container Systems, 895. E-mail address authentication of the application. The INA-288 (BALCA 1991). employer contact in Section D of the See also 20 CFR 656.17 Form 9089 can be different from the (l). employer contact who is listed and signs Section N, which is the Employer Declaration. The employer signatory in Section N must be ETA Form 9089 Page 1 of 10 someone with hiring authority. If there is more than one relevant North American Industry Classification System (NAICS) code, select the industry most closely related to the occupation for which the employer will file a Postal code labor certification. Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 26 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor E. Agent or Attorney Information (If applicable) 1. Agent or attorney’s last name 2. Firm name 3. Firm EIN 5. Address 1 "Occupation title" may or may not be same as Address 2 employer's "job title" in H.3 below. Refer to 6. City O*NET. 7. E-mail address 4. Phone number Extension See ETA Prevailing Wage Determination Policy Guidance (May 9, 2005), 20 CFR 656.3, and O*NET Web Site (http://online. Postal code onetcenter.org). First name Middle initial State/Province Country F. Prevailing Wage Information (as provided by the State Workforce Agency) 1. Prevailing wage tracking number (if applicable) 3. Occupation Title See 20 CFR 656.40 & 656.41. 5. Prevailing wage See 20 CFR 656.40(2)(4) for rules regarding wage sources. Per: (Choose only one) 2. SOC/O*NET(OES) code 4. Skill Level Week Hour 6. Prevailing wage source (Choose only one) OES CBA Employer Conducted Survey 6-A. If Other is indicated in question 6, specify: 7. Determination date $ Bi-Weekly DBA Month SCA Year Other 8. Expiration date G. Wage Offer Information See 20 CFR 656.10(c)(1)(4) for specific rules about Per: (Choose only one) To: (Optional) offered wage. $ $ Month Year Hour Week Bi-Weekly Employer must decide whether to apply for the position and location in which the foreign beneficiary is currently employed, or whether to look prospectively at the job the H. Job Opportunity Information (Where work will be performed) FN is likely to hold (which may be in a different location) when he or she is ultimately granted permanent residence 1. Primary worksite (where work is to be performed) address 1 anywhere from 2 to 7 years hence. These are clearly difficult decisions to make given how a company's Use employer's payroll Address 2 business needs can change. job title, not the title under 1. Offered wage From: 2. City 3. Job title May not correspond to employer's actual business needs or practices. See 20 4. Education: minimum level required: CFR 656.17(h) and (i) regarding "actual minimum None High School Associate’s Bachelor’s Master’s requirements" under PERM. 4-A. If Other is indicated in question 4, specify the education required: the Standard Occupational Classification (SOC). State Postal code Doctorate Other 4-B. Major field of study See also H.7 below. 5-A. If Yes, number of months of training required: 5. Is training required in the job opportunity? No Yes ETA Form 9089 Page 2 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 The total months/years of Page 27 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor H. Job Opportunity Information Continued 5-B. Indicate the field of training: Box 7.A may not be big enough if employer will accept an array of alternatives (such as Electrical/ Electronics Engineering, Computer Science, Information Systems or Mathematics for an IT position). But limiting alternatives may cause DOL to charge employers with being unduly restrictive under 20 CFR 656.17(h). required experience and education may not exceed the specific vocational preparation (SVP) unless it is documented on the basis of business necessity. See 20 CFR 656.17 (h)(1). 6. Is experience in the job offered required for the job? 6-A. If Yes, number of months experience required: If experience in an alternate Yes No occupation is required, may still need 7. Is there an alternate field of study that is acceptable? experience in job offered to specify Yes No or DOL may determine that minimum requirement is “0” months of 7-A. If Yes, specify the major field of study: experience. 8. Is there an alternate combination of education and experience that is acceptable? No Yes Alternative experience requirements must be “substantially equivalent” to the 8-A. If Yes, specify the alternate level of education required: requirements for the position for which certification is sought. See 20 primary job CFR 656.17(h)(4). In addition, if the foreign national beneficiary is already None High School Associate’s Other Bachelor’s Master’s Doctorate employed by the employer and only qualifies for the position by meeting the 8-B. If Other is indicated in question 8-A, indicate secondary or alternative job requirements, the employer's application must state the alternate level of education required: that the employer will accept "any suitable combination of education, training, or experience." As the form provides no space for this language, it should be 8-C. If applicable, indicate the number of years experienceH.14. A threshold legal issue is whether DOL's rule on alternative added in acceptable in question 8: requirements applies to alternative educational or educational/experience 9. Is a foreign educational equivalent acceptable? Yes No requirements. 10. Is experience in an alternate occupation acceptable? Yes No 10-A. If Yes, number of months experience in alternate occupation required: Employers usually look for experience with duties and skills, not occupations, so these questions can be difficult to answer. In the real world, an employer wants to hire the best person for the job, but labor certification regulations require the employer to set out the “actual minimum requirements” for the position--a term of art that generally requires employers to downgrade their true requirements-and to consider a U.S. worker applicant acceptable if he or she is minimally qualified. See 20 CFR 656.17(i). 10-B. Identify the job title of the acceptable alternate occupation: 11. Job duties – If submitting by mail, add attachment if necessary. Job duties description must begin in this space. Not the same as job requirements. Job requirements exceeding the O*NET SVP may be challenged, but unusual job duties are only subject to challenge if they involve a combination of duties normally found in other occupations. See H.15 below and 20 CFR 656.17(h)(3). This term of art has a specific meaning in the PERM context and is related to the SOC/O*NET/OES Code and the SVP level as determined by DOL, not to what is normal in the employer's business. Also implicates issues related to "business necessity" - see 20 CFR 656.17(h)(1). 12. Are the job opportunity’s requirements normal for the occupation? Yes If the answer to this question is No, the employer must be prepared to provide documentation demonstrating that the job requirements are supported by business necessity. 13. Is knowledge of a foreign language required to perform the job duties? No If the answer to this question is Yes, the employer must be prepared to provide documentation demonstrating that the language requirements are supported by business necessity. 14. Specific skills or other requirements – If submitting by mail, add attachment if necessary. Skills description must begin in this space. If the skills do not match those listed in O*NET for the occupation, the Skill Level (see F.4, above) is Even if answer is yes, employer should only check yes if it can provide Yes No documentation to satisfy 20 CFR 656.17 (h)(2). increased by one step. However, O*NET does not clearly identify skills, so judgment is required in determining whether DOL is likely to conclude that the employer's required skills are excessive. Skills that do not appear in O*NET must be justified as arising out of a so-called "business necessity." See Matter of Information Industries, Inc., 1988-INA-82 (Feb. 9, 1989). See also 20 CFR 656.17(h)(1). Skills the worker can readily learn through a reasonable period of on-the-job training or for which the worker is qualified by a combination of education, training, and experience cannot be used to reject applicants, though there are no clear standards as to what is “reasonable." ETA Form 9089 Page 3 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 28 of 45 Application for Permanent Employment Certification This term of art has a specific meaning in the PERM context, ETA Form 9089 and if answer is "Yes" employer U.S. Department of Labor must document need based on H. Job Opportunity Information Continued "business necessity" as set out in 20 CFR 656.17(h)(3). 15. Does this application involve a job opportunity that includes a combination of No Yes occupations? 16. Is the position identified in this application being offered to the alien identified in Section J? 17. Does the job require the alien to live on the employer’s premises? Yes No The standard for "professional" is whether a Bachelor's degree (or equivalent) is normally No Yes required, not whether this specific job requires a 18. Is the application for a live-in household domestic service worker? Bachelor's degree. Appendix A Nothe PERM rule to Yes provides a list of professional occupations. If 18-A. If Yes, have the employer and the alien executed the required employment occupation is considered to be NA listed, the Yes No contract and has the employer provided a copy of the contract to the alien? "professional" even if the employer does not require a Bachelor's degree or equivalent for the position. Professional positions require three I. Recruitment Information additional recruitment steps. See 20 CFR 656.3 a. Occupation Type – All must complete this section. and 656.17(e)(1)(ii). 1. Is this application for a professional occupation, other than a college or Yes No university teacher? Professional occupations are those for which a bachelor’s degree (or equivalent) is normally required. 2. Is this application for a college or university teacher? If Yes, complete questions 2-A and 2-B below. 2-A. Did you select the candidate using a competitive recruitment and selection process? 2-B. Did you use the basic recruitment process for professional occupations? Optional special recruitment and No Yes documentation procedures for college and university teachers are set out in Yes No 20 CFR 656.18. Yes b. Special Recruitment and Documentation Procedures for College and University Teachers – Complete only if the answer to question I.a.2-A is Yes. 3. Date alien selected: 4. Name and date of national professional journal in which advertisement was placed: 5. Specify additional recruitment information in this space. Add an attachment if necessary. Job order (which is not part of most employers' normal If the answer to I.c.8 is “no” and the recruitment, particularly for professional positions) must area of intended employment is rural, run for 30 days. If State Job Bank makes a mistake, the weekday paper with the largest even by one day, the labor certification application will circulation may be used. See 20 CFR be denied. Employers who engage in ongoing 656.17(e)(1)(i)(B)(2) (which does not, recruitment and indicate here a period of more than 30 however, define what constitutes a days have also had their applications denied. See 20 “rural area”). CFR 656.17(e)(1)(i)(A). c. Professional/Non-Professional Information – Complete this section unless your answer to question B.1 or I.a.2-A is YES. 6. Start date for the SWA job order 7. End date for the SWA job order Yes No No 8. Is there a Sunday edition of the newspaper in the area of intended employment? 9. Name of newspaper (of general circulation) in which the first advertisement was placed: Where an employer runs ongoing ads, the dates listed on the application must still fall within 30 to 180 days prior to 11. Name of newspaper or professional journal (if applicable) in which secondfiling the application,placed: advertisement was as required under 20 CFR 656.17(e)(1)(ii). Newspaper Journal 10. Date of first advertisement identified in question 9: ETA Form 9089 Page 4 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 29 of 45 Application for Permanent Employment Certification See 20 CFR 656.17(e)(ii) ETA Form 9089 for rules regarding U.S. Department of Labor I. Recruitment Information Continued additional recruitment steps for professional positions. 12. Date of second newspaper advertisement or date of publication of journal identified in question 11: d. Professional Recruitment Information – Complete if the answer to question I.a.1 is YES or if the answer to I.a.2-B is YES. Complete at least 3 of the items. 13. Dates advertised at job fair 14. Dates of on-campus recruiting From: To: From: To: 15. Dates posted on employer web site 16. Dates advertised with trade or professional organization See 20 CFR From: To: From: To: See 20 CFR 656.12 for special rules 656.17(e), (f) and 17. Dates listed with job search web site 18. Dates listed with private employment firmnational from paying restricting foreign (g) for the unique From: To: From: To: his/her own costs and/or attorney's and detailed 19. Dates advertised with employee referral program 20. Dates advertised with campus placement office fees where the same attorney PERM From: To: From: To: represents both the employer and recruitment 21. Dates advertised with local or ethnic newspaper 22. Dates advertised with radio or TV Employers are also employee. ads requirements From: To: From: To: precluded from seeking which differ reimbursement of costs from substantially from e. General Information – All must complete this section. employee. most employers' 23. Has the employer received payment of any kind for the submission of this “real world” No Yes application? recruitment 23-A. If Yes, describe details of the payment including the amount, date and purpose of the payment : procedures. See also 20 CFR 20 CFR § 656.10(d) sets out 656.10(f) specific requirements for 24. Has the bargaining representative for workers in the occupation in which the regarding providing notice of the NA of filing No Yes alien will be employed been provided with notice of this filing at least 30 days employers' the labor certification to but not more than 180 days before the date the application is filed? obligations with employees or their bargaining 25. If there is no bargaining representative, has a notice of this filing been posted respect to representative, including No NA Yes for 10 business days in a conspicuous location at the place of employment, document language that the notice must ending at least 30 days before but not more than 180 days before the date the retention. contain. application is filed? Yes No These are terms of art in the PERM world the determination of which No NA Yes must be accomplished against specific legal requirements and which do not normally enter into J. Alien Information (This section must be filled out. This information must be different from the agent employers' recruitment or attorney information listed in Section E). considerations and employment decisions. 1. Alien’s last name First name Full middle name See 20 CFR 656.3 and 20 CFR 656.17(k) actually requires 656.17(k)(2). For example, unlike employers to notify potentially the “substantially comparable” 2. Current address 1 qualified laid-off U.S. workers (not standard set out in 20 CFR 656.17 all laid-off U.S. workers), which (i)(3)(i) (which employers must use Address 2 understandably has led employers in evaluating whether the foreign to seek advice on how to proceed beneficiary of a labor certification 3. City State/Province and how to answer this question. Country Postal code can rely on qualifying experience gained while working for the 4. Phone number of current residence employer), here the employer must look at whether a laid-off worker 5. Country of citizenship 6. Country of birth was employed in a “related occupation,” which is defined as 7. Alien’s date of birth 8. Class of admission “any occupation that requires workers to perform a majority of the 9. Alien registration number (A#) 10. Alien admission number (I-94) essential duties involved in the occupation for which certification is 11. Education: highest level achieved relevant to the requested occupation: sought.” See 20 CFR 656.17(k)(1), None High School Associate’s (2). Doctorate nowhere in the PERM However, Other Bachelor’s Master’s regulations does DOL define what is meant by “essential.” Such undefined terms Page 5 of 10 require inevitably ETA Form 9089 employers to seek qualified outside counsel. 26. Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application? 26-A. If Yes, were the laid off U.S. workers notified and considered for the job opportunity for which certification is sought? Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 30 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor J. Alien Information Continued 11-A. If Other indicated in question 11, specify 12. Specify major field(s) of study 13. Year relevant education completed If the foreign national beneficiary gained qualifying experience with the same employer but in a position that 11 was received 14. Institution where relevant education specified in question is not “substantially comparable” to the job offered in the labor certification, the answer here should be “no.” DOL regulations define a "substantially comparable" job as a "job or position requiring performance of the same job duties more 15. Address 1 of conferring institution than 50 percent of the time." See 20 CFR 656.17(i)(5)(ii). (A different standard applies in the layoff context [see Question I.26 on this application form], and is set out in 20 CFR Address 2 656.17(k)(2). Understanding these conflicting standards requires employers to seek legal counsel.) Prior experience is onlyCountry considered "experience with thecode employer" 16. City State/Province Postal same for the purposes of J.21 if the prior experience was with an entity with the same federal employer the requested job opportunity, 17. Did the alien complete the training required foridentification number (FEIN). But experience with the same employer includes No Yes NA experience gained while a contract worker at that employer. See 20 CFR 656.17(i)(3). as indicated in question H.5? 18. Does the alien have the experience as required for the requested job opportunity indicated in question H.6? 19. Does the alien possess the alternate combination of education and experience as indicated in question H.8? 20. Does the alien have the experience in an alternate occupation specified in question H.10? 21. Did the alien gain any of the qualifying experience with the employer in a position substantially comparable to the job opportunity requested? 22. Did the employer pay for any of the alien’s education or training necessary to satisfy any of the employer’s job requirements for this position? 23. Is the alien currently employed by the petitioning employer? Yes K. Alien Work Experience List all jobs the alien has held during the past 3 years. Also list any other experience that qualifies the alien for the job opportunity for which the employer is seeking certification. a. Job 1 1. Employer name 2. Address 1 Address 2 3. City 4. Type of business 6. Start date No The employer must answer Questions J.11 through J.20 carefully so that it is clear to DOL that the foreign national beneficiary of the application meets the requirements set out in Section H. Yes Yes Yes No No No NA NA NA Yes Yes No No NA The answer to this question implicates several issues set out in 20 CFR 656.17(h) and (i), including whether the employer will also accept “any suitable combination of education, training, or experience,” whether the beneficiary gained the experience while working for the employer and, if so, whether it was in a position that was State/Province Country Postal code “substantially comparable” to the job offered in the labor certification, whether the employer offers similartitle 5. Job training to “domestic worker applicants,” whether the employer can demonstrate that it is no longer feasible to train of hours worked per week 7. End date 8. Number a worker to qualify for the position, etc. ETA Form 9089 Page 6 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 31 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor K. Alien Work Experience Continued 9. Job details (duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc. Include the phone number of the employer and the name of the alien’s supervisor.) The foreign national's previous work experience must be explained with specific details that relate directly to the employer's job requirements so that it is clear that the person's skills fulfill the employer's stated job requirements. b. Job 2 1. Employer name 2. Address 1 Address 2 3. City 4. Type of business 6. Start date 7. End date State/Province Country 5. Job title 8. Number of hours worked per week Postal code 9. Job details (duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc. Include the phone number of the employer and the name of the alien’s supervisor.) c. Job 3 1. Employer name 2. Address 1 Address 2 3. City 4. Type of business 6. Start date 7. End date State/Province Country 5. Job title 8. Number of hours worked per week Postal code ETA Form 9089 Page 7 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 32 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor K. Alien Work Experience Continued 9. Job details (duties performed, use of tools, machines, equipment, skills, qualifications, certifications, licenses, etc. Include the phone number of the employer and the name of the alien’s supervisor.) L. Alien Declaration I declare under penalty of perjury that Sections J and K are true and correct. I understand that to knowingly furnish false information in the preparation of this form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621. In addition, I further declare under penalty of perjury that I intend to accept the position offered in Section H of this application if a labor certification is approved and I am granted a visa or an adjustment of status based on this application. 1. Alien’s last name 2. Signature First name Date signed Full middle name Note – The signature and date signed do not have to be filled out when electronically submitting to the Department of Labor for processing, but must be complete when submitting by mail. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from DOL before it can be submitted to USCIS for final processing. M. Declaration of Preparer 1. Was the application completed by the employer? If No, you must complete this section. Yes No I hereby certify that I have prepared this application at the direct request of the employer listed in Section C and that to the best of my knowledge the information contained herein is true and correct. I understand that to knowingly furnish false information in the preparation of this form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine, imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621. 2. Preparer’s last name 3. Title 4. E-mail address 5. Signature Date signed First name Middle initial Note – The signature and date signed do not have to be filled out when electronically submitting to the Department of Labor for processing, but must be complete when submitting by mail. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from DOL before it can be submitted to USCIS for final processing. ETA Form 9089 Page 8 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 33 of 45 Application for Permanent Employment Certification ETA Form 9089 U.S. Department of Labor N. Employer Declaration By virtue of my signature below, I HEREBY CERTIFY the following conditions of employment: 1. 2. The offered wage equals or exceeds the prevailing wage and I will pay at least the prevailing wage. The wage is not based on commissions, bonuses or other incentives, unless I guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage. 3. I have enough funds available to pay the wage or salary offered the alien. 4. I will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance into the United States. These are terms of art that have 5. The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, the labor specific meanings in religion, handicap, or citizenship. certification context that employers 6. The job opportunity is not: do not encounter in normal, “real a. Vacant because the former occupant is on strike or is being locked out in the course of a labor dispute CFR world” recruiting. See 20 involving a work stoppage; or 656.10(c)(8), (9). b. At issue in a labor dispute involving a work stoppage. 7. The job opportunity’s terms, conditions, and occupational environment are not contrary to Federal, state or local law. 8. The job opportunity has been and is clearly open to any U.S. worker. 9. The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons. 10. The job opportunity is for full-time, permanent employment for an employer other than the alien. IThis requirement, found agent or attorney identified in section E (if any) to represent me for the purpose of labor hereby designate the in 20 CFR 656.3 and, by virtue of my certification and 656.10(c)(10), signature in Block 3 below, I take full responsibility for the accuracy of any takes on special meaning in agent or attorney. representations made by my the context of “at will” employment. I declare under penalty of perjury that I have read and reviewed this application and that to the best of my knowledge the information contained herein is true and accurate. I understand that to knowingly furnish false information in the preparation of this form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621. 1. Last name 2. Title 3. Signature Date signed First name Middle initial Signatory must be person with hiring authority, not necessarily the same as the “employer contact” in Section D. Note – The signature and date signed do not have to be filled out when electronically submitting to the Department of Labor for processing, but must be complete when submitting by mail. If the application is submitted electronically, any resulting certification MUST be signed immediately upon receipt from DOL before it can be submitted to USCIS for final processing. O. U.S. Government Agency Use Only Pursuant to the provisions of Section 212 (a)(5)(A) of the Immigration and Nationality Act, as amended, I hereby certify that there are not sufficient U.S. workers available and the employment of the above will not adversely affect the wages and working conditions of workers in the U.S. similarly employed. ______________________________________________ Signature of Certifying Officer ______________________________ Date Signed ______________________________________________ Case Number ETA Form 9089 ______________________________ Filing Date Page 9 of 10 Case 1:08-cv-01387-RMU OMB Approval: 1205-0451 Expiration Date: 03/31/2008 Document 20-2 Filed 09/10/2008 Page 34 of 45 Application for Permanent Employment Certification P. OMB Information ETA Form 9089 U.S. Department of Labor Paperwork Reduction Act Information Control Number 1205-0451 Persons are not required to respond to this collection of information unless it displays a currently valid OMB control number. Respondent’s reply to these reporting requirements is required to obtain the benefits of permanent employment certification (Immigration and Nationality Act, Section 212(a)(5)). Public reporting burden for this collection of information is estimated to average 1¼ hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate to the Division of Foreign Labor Certification * U.S. Department of Labor * Room C4312 * 200 Constitution Ave., NW * Washington, DC * 20210. Do NOT send the completed application to this address. Q. Privacy Statement Information In accordance with the Privacy Act of 1974, as amended (5 U.S.C. 552a), you are hereby notified that the information provided herein is protected under the Privacy Act. The Department of Labor (Department or DOL) maintains a System of Records titled Employer Application and Attestation File for Permanent and Temporary Alien Workers (DOL/ETA-7) that includes this record. Under routine uses for this system of records, case files developed in processing labor certification applications, labor condition applications, or labor attestations may be released as follows: in connection with appeals of denials before the DOL Office of Administrative Law Judges and Federal courts, records may be released to the employers that filed such applications, their representatives, to named alien beneficiaries or their representatives, and to the DOL Office of Administrative Law Judges and Federal courts; and in connection with administering and enforcing immigration laws and regulations, records may be released to such agencies as the DOL Office of Inspector General, Employment Standards Administration, the Department of Homeland Security, and the Department of State. Further relevant disclosures may be made in accordance with the Privacy Act and under the following circumstances: in connection with federal litigation; for law enforcement purposes; to authorized parent locator persons under Pub. L. 93-647; to an information source or public authority in connection with personnel, security clearance, procurement, or benefit-related matters; to a contractor or their employees, grantees or their employees, consultants, or volunteers who have been engaged to assist the agency in the performance of Federal activities; for Federal debt collection purposes; to the Office of Management and Budget in connection with its legislative review, coordination, and clearance activities; to a Member of Congress or their staff in response to an inquiry of the Congressional office made at the written request of the subject of the record; in connection with records management; and to the news media and the public when a matter under investigation becomes public knowledge, the Solicitor of Labor determines the disclosure is necessary to preserve confidence in the integrity of the Department, or the Solicitor of Labor determines that a legitimate public interest exists in the disclosure of information, unless the Solicitor of Labor determines that disclosure would constitute an unwarranted invasion of personal privacy. ETA Form 9089 Page 10 of 10 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 35 of 45 Supplemental Declaration of Michael D. Patrick EXHIBIT C Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 36 of 45 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 37 of 45 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 38 of 45 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 39 of 45 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 40 of 45 Supplemental Declaration of Michael D. Patrick EXHIBIT D Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 41 of 45 Litwin & Associates, A Law Corporation Important Annoucements DOL Audits All Labor Cert. Applications Filed by the Fragomen Law Firm Summary: The Department of Labor (DOL) has decided to conduct an audit of all permanent labor certification applications filed by Fragomen, Del Rey, Bernsen & Loewy, LLP (Fragomen). DOL alleged that it "has information indicating that in at least some cases the firm improperly instructed clients who filed permanent labor certification applications to contact their attorney before hiring apparently qualified U.S. workers." The audits will determine which, if any, applications should be denied or placed into department-supervised recruitment "because of improper attorney involvement in the consideration of U.S. worker applicants," the DOL said. Fragomen responded in a statement released on its Web site that "DOL, by its audit, seeks to limit the right to counsel. In order to make its point, DOL presses to make a radical departure from past practice and create a new regulatory interpretation which would limit the role of employers' attorneys and bar them from giving guidance on specific fact situations." The outcome of this back and forth between the DOL and the Fragomen Law Firm remains to be seen. More importantly, for employers, what does this mean for the labor certification process for Fragomen cases and labor certifications in general? The following is what I predict can be expected: DELAYS OF ALL FRAGOMEN CASES – PRESENT AND FUTURE. In light of the numerous cases which may be involved, if the DOL follows through with their stated intentions, the sheer manpower that it will take to audit all these cases is going to cause delay in their processing. A general increase in the number of audits has already slowed down the processing of audited cases. Auditing all of the Fragomen cases could bring labor certification processing of the cases which they represent to a virtual standstill, at least for the near future. OVERWHELMING OF THE ATLANTA DEPT. OF LABOR OFFICE. As of June 1st, all PERM labor certification processing activities have been assigned to only the Atlanta DOL office. Chicago is no longer involved. The Atlanta office has already been recognized for processing delays of the labor certifications under its review. It is safe to assume that the Atlanta staff is not ramped up to deal with the onslaught of hundreds, and quite possibly thousands, of mandatory audits. INDIVIDUALS AND, POSSIBLY COMPANIES, ARE GOING TO SEEK OTHER FIRMS TO PROCESS THEIR LABOR CERTIFICATIONS With a guaranteed audit, most are not thrilled by the prospect and the additional time, effort, and money that these audits will incur. While no PERM labor certification is exempt from an audit, taking a chance is certainly better than a sure thing. Our office has already had conversations with a number of people who are looking for alternatives to Fragomen processing their cases, along with its guaranteed audit. THERE IS THE POSSIBILITY OF DELAYS FOR ALL PERM LABOR CERTIFICATIONS. Due to the work load that the Fragomen audit will impose, it will be impossible for the Atlanta DOL to keep up with “business as usual.” This means that all PERM cases will take longer (Although many non-Fragomen non-audit cases should be adjudicated with only a modest delay). If a case is going to be audited, it will probably be thrown in with all the other cases in the Fragomen queue, which may mean months of additional processing times. THE DOL COULD CHANGE THEIR MIND. Once confronted with the horrific amount of time and lack of resources that it has, the DOL may just cave in, retract its statement about auditing all Fragomen cases, and merely identify a much more selective Fragomen audit program. http://www.litwinlaw.com/FSL5Apps/Temp/rad42C36.tmp.asp? 9/4/2008 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 42 of 45 THE DOL APPEARS TO BE ON THE WAR PATH. One thing is certain; the Dept. of Labor is trying to spread the message. While we are evaluating the message that the DOL is trying to spread about attorney involvement in the recruitment process, Litwin & Associates is very comfortable in the way that it has handled and continues to handle PERM processing and the advice that we give our corporate and individual clients. However, until the dust of this particular snafu settles, you may find that we will be giving more information up front, to allow you to do your work better. We continue, as in the past, to maintain the highest levels of integrity for both our clients and ourselves, so that the Dept. of Labor will not be tempted to audit any of our clients’ cases, at least, on a wholesale basis. Edward R. Litwin © 2008 by Litwin & Associates, A Law Corporation. All rights reserved. http://www.litwinlaw.com/FSL5Apps/Temp/rad42C36.tmp.asp? 9/4/2008 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 43 of 45 Supplemental Declaration of Michael D. Patrick EXHIBIT E Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 44 of 45 EMPLOYMENT AND TRAINING ADMINISTRATION, USDOL OFFICE OF FOREIGN LABOR CERTIFICATION Permanent Labor Certification Program – Selected Statistics FY 2008 Applications Received: 61,800 (Oct 07 – May 08) 70,000 60,000 50,000 40,000 30,000 20,000 10,000 0 PERM On-Line Submission Mail-In Submission 58,800 Breakdown in Completed Cases Category FY 2008 (Oct 07– May 08) Cumulative (since Mar 05) Certified Denied Withdrawn Total Completed 3,000 28,773 7,779 1,694 38,246 209,393 56,648 5,170 271,211 Distribution of Active PERM Cases 30,900 cases (as of 5/31/08) Sponsorship Review Cases 3% Appeal Cases 12% Final Review Cases 41% Major Program Highlights Implemented pilot “Gov’t Error Queue” in Atlanta NPC for Appeal Cases effective April 1, 2008 Implemented specialization of the NPCs effective June 1, 2008 - Chicago NPC: Temporary Programs - Atlanta NPC: PERM Program Re-Engineered ETA Form 9089 - OMB issued Notice of Action on 6/2/2008 extending current form - OFLC will accept current ETA Form 9089 for processing through Dec. 31, 2008 - Planning implementation of new ETA Form 9089 on Jan. 1, 2009 Re-Engineered ETA Form 9035 (LCA) - OFLC expects publication of notice in Federal Register for 60 days of public comment in early July Audit Cases 44% June 2008 Page P.1 Case 1:08-cv-01387-RMU Document 20-2 Filed 09/10/2008 Page 45 of 45 EMPLOYMENT AND TRAINING ADMINISTRATION, USDOL Highlights of Fiscal Year (FY) 2008 PERM Certifications October 1, 2007 – March 31, 2008 Approximately 24,300 cases were certified during the first and second calendar quarters of FY 2008; 66% of foreign workers on H-1B visas. The top 5 states of intended employment for these permanent labor certifications were California (6,843), Texas (2,050), New York (1,998), New Jersey (1,750), Illinois (1,380), and Florida (1,228); Alien beneficiaries representing more than 150 different countries were certified for permanent employment in the U.S. The top 10 countries of citizenship of alien beneficiaries included India (8,127), China (1,809), South Korea (1,654), Philippines (1,631), Mexico (1,461), Canada (1,340), United Kingdom (482), Pakistan (442), Taiwan (441), and Brazil (382); and Top job titles certified for permanent employment included Computer Software Engineers (4,607), Computer Systems Analysts (1,486), Computer and Information System Managers (825), Electronics Engineers (616), Computer Programmers (499), Market Research Analysts (458), Mechanical Engineers (350), Accountants (325), Operations Research Analysts (323), and Restaurant Cooks (322). PERM Certifications by Top 10 U.S. States (Place of Intended Employment) FY 2008 Workers Certified = 24,300 June 2008 Page P.2