On Jul 10 2007 by William A. Stock
Labor Certification Survivor: Seven Steps to More Effective Labor Certifications
For the past year, all of us have been hacking our way through the thickets of the ETA-9089 form, focusing only on how to complete the form, how to avoid triggering the traps for the careless, and even, heaven help us, when to use "magic language."
Small wonder, then, that we may no longer recognize the terrain around us. Worse, we may begin to feel that our skills may not be up to navigating us back to paths down which we are confident in leading our clients. Surviving the new world of labor certifications, however, requires recognition of the fundamental fact: the attorney’s goal in the process is still to communicate the unavailability of United States workers with the employer’s actual requirements to the Department of Labor. This article, therefore, is not another “how to” complete the various fields of the ETA-9089, but rather provides a program of more general steps you can take in order to get your labor certification practice back on the path.
Step 1: Get a Grip
When lost in the woods, survival experts agree: the first step is to sit down and think, to get control of the situation and avoid floundering off further in the wrong direction (or over a cliff). Similarly, when initiating a labor certification, the first step is to get control of the relationship with the clients and the clients’ relationship with the labor certification process. We attorneys have an ethical obligation to “zealously represent” our clients, but within the bounds of the law. In approaching a potential labor certification, the attorney must, fundamentally, remember that the labor certification process was developed to address a particular situation — the unavailability of U.S. workers with a particular skill set. Similarly, Congress has set certain priorities for immigration and limitations on immigration. Any time there is a system which sets limits, some clients will fit within those limits and some will not. While we may wish and even advocate for a different system, the fact remains that there is a current legal system through which employment-based immigration occurs, and we have an obligation to ensure that the applications we file comply with all of the regulations governing the system.
“Getting a grip” means that the attorney can never let the client’s desire for a particular outcome dictate how the application is processed. The temptation to “bend” or “exaggerate” the employer’s requirements is always out there, and the seemingly arbitrary nature of the limits in the labor certification process can lead a well-meaning attorney to justify to him- or herself that a greater good is accomplished by violating the rules of the labor certification process. The need for self-policing is particularly acute under the PERM system. Because of the audit-based nature of the system, an attorney may think it is less risky to take an “aggressive” position that actually crosses the line over what is allowable. Similarly, the attorney can never let the client’s perception of what “everyone” does drive the strategic decisions in the case. The most frequent example of when the attorney’s leadership will be challenged is the determination of whether the employer’s requirements include a relevant Master’s degree, or include at least two years of training and experience. With the long backlogs that have developed in the third preference immigrant category, many employees would prefer the position requirements in their labor certification include a bachelor’s degree plus five years of experience, or a master’s degree. With the longer backlogs that have developed in the third-preference employment based category for “other workers,” the pressure to inflate the employer’s job requirements to include at least two years of training, education or experience is even more acute. It is the attorney who must point out that it is not sufficient (or even necessarily relevant) that the employee have a master’s degree, or the relevant amount of experience, for it to be included in the labor certification application. Rather, it is the employer’s actual minimum requirements that matter.
As discussed below in Step 2, it is the attorney’s responsibility in this situation not to take the employer or employee’s assertion that a particular qualification is required at face value. Simply following the clients’ desire in this case may put the labor certification in conflict with the employer’s normal requirements, with other labor certifications filed by the same employer, or with DOL requirements on equivalency of education and experience. The attorney should explain the situation of the “actual minimum requirements” concept and explore what documentation exists to support the employer’s stated requirements, such as job postings, advertisements, job descriptions, the qualifications of other workers in the same position, and the requirements stated in other labor certification applications or immigration filings. If the attorney does not assert leadership of and responsibility for the process, he or she cannot effectively anticipate difficulties later in the process and lay the groundwork for overcoming them.
Step 2: Draw the Map
In the wilderness, a good map of one’s route is essential before beginning any hike to stay on course and avoid or be prepared for hazards. Similarly, the attorney must assess the entire case from start to finish before beginning the labor certification, to anticipate the problems that will arise at later stages of the application process, and to develop a plan to address those problems. The attorney needs to “draw the map” of the whole process for the client, so that the client can be advised of potential obstacles. The most important obstacles to anticipate are those that may mean the success at one step of the process will be negated by inability to progress with the following step. An attorney’s ethical obligation to communicate with a client and to allow the client to make informed decisions plays an important role here, as well, since the clients are really not interested in whether or not a labor certification (standing alone) is possible, but in having a labor certification that they can use for the employee to immigrate and work for the employer. Three concrete examples will help illustrate what is meant by “drawing the map.”
The first example is assessing the employee’s eligibility for adjustment of status (or a waiver of unlawful presence) prior to agreeing to undertake a labor certification. Admissibility, eligibility for 245(i) adjustment of status, and unlawful presence are all matters outside the immediate problems of the labor certification and immigrant visa petition, and it is quite possible to obtain a labor certification and an approved immigrant visa petition on behalf of an individual who has a nonwaivable ground of inadmissibility (such as HIV positive status, or a past “crime involving moral turpitude”). While technically irrelevant to the labor certification process, which deals only with the employee’s qualifications for the position and the availability of U.S. workers, the fact that the expensive and time consuming process of labor certification will be “successful” without resulting in permanent residence is quite relevant to the clients. At a minimum, an attorney undertaking a labor certification that will only be useful for adjustment of status if INA 245(i) is enacted again, for example, should clearly indicate that fact to the client, in writing, in advance of undertaking the representation. Indeed, even advising the client to take action based on a hoped-for change in the law is troubling, in that the law may be changed in a way that does allow the client to apply for permanent residence, but in a way that does not involve a labor certification.
The second example of drawing the map at the beginning is evaluating the I-140 issues as part of the preparation of the labor certification. On the employer side, this evaluation should include reviewing the employer’s financial statements or tax returns and assessing whether they show the employer’s ability to pay the offered wage as of the filing date of the labor certification. On the employee side, the attorney should review whether or not the employee can document the education, training and experience required on the labor certification. Indeed, attorneys may be well-advised to insist that the employee actually obtain evidence of the claimed experience or education prior to initiating the labor certification process, particularly where difficulties may be expected or where (as is sometimes the case) the employee only remembers that a past job included a particular skill while the attorney is talking to them about the employer’s requirements. With PERM’s particular question and answer format, as well, the attorney should evaluate how the answers to the questions on the PERM form may relate to I-140 adjudication issues.
A third example of drawing the map is anticipating the potential problems in the labor certification process at the outset. For example, a particular case may be feasible only at a certain wage level, which means that the attorney may wish to suggest waiting for a Prevailing Wage Determination before initiating the recruitment process, or sending in a Prevailing Wage Determination with a private survey that documents the appropriateness of the offered salary. Similarly, the attorney should be anticipating all of the pre-filing steps that will need to be completed, and initiating as many of them concurrently as possible — the state job order, which must be up for thirty days and then closed thirty days before filing, and the notice posting, which must be up for fourteen or fifteen calendar days and then down for thirty days before filing, should be initiated proactively at the same time as the advertising is running.
A fourth example of drawing the map is preparing for possible changes in the position or the employee’s location over time, or likely promotions during the long wait for a priority date to become current. At the outset, the attorney should help the client determine whether the position is essentially static, or whether promotions or other changes during the expected wait are anticipated. Even if the employer is not willing to guarantee that such promotions will occur, it may be possible to draft a labor certification is a more general way in order to accommodate possible job changes.
Consistently drawing the map from beginning to end will go a long way toward making one a more successful labor certification attorney, since a problem down the road cannot be avoided if it is not anticipated.
Step 3: Remember the Forest
To get back on the trail if one is lost, it is helpful to get to an overlook or clear terrain from which a broad area is visible. In labor certification practice, once the potential problems are anticipated, the attorney, employer and employee must stay focused on the two “big picture” issues that make a successful labor certification, even while down in the thickets of the details of the employer’s requirements for the position and the employee’s qualifications. The two “big picture” issues the attorney must not lose sight of are the application’s overall credibility, and its most important requirement.
The application’s overall credibility is something that the attorney should begin evaluating at the initial intake, and continually re-evaluate as the application progresses. A simple example might be assessing a possible labor certification on behalf of an employee of a trucking company who has been working as a truck driver (an “other worker” position), but whom the company would like to sponsor as a diesel mechanic (a “skilled worker” position). While it is true that a labor certification would more likely be successful (and result in a shorter wait for a priority date to become current) on behalf of a diesel mechanic, on its face one might question whether the company actually needs a full-time mechanic and would employ the sponsored employee as such. Having raised the question, the attorney may still opt to proceed, but only after buttressing the application’s overall credibility by gathering — and retaining in the audit file — documentation of why the employer needs a full-time mechanic (for example, the company’s trucking depot may be a good location for a service center, allowing it to expand its business, or the company may have contracts with independent owner-operators to whom it wishes to provide maintenance and repair services, or the company may have paid enough money for repairs that it would be cost-effective to in-source the repair work). If the need for an employee with the particular skill set does not make sense in the employer’s business plan, it will not likely make sense to the Department of Labor, either.
A more complicated example might arise in an application on behalf of an experienced IT professional, such as a senior software engineer. Such positions typically have a string of technical requirements, each of which should be justified as bona fide requirements for the position. Upon further questioning, it may become clear that one or more of the technical requirements would not take a senior person very long to learn, or that a requirement represents one particular vendor’s version of a common software development tool. To preserve the credibility of the application, the attorney should ask the employer pointed questions, namely whether someone with five or more years of software development experience who had been using one vendor’s version of a software tool would not be able to learn another vendor’s version of the same tool in short order. This process should be repeated with each and every requirement, so that the employer’s requirement list does not include irrelevant or easily-learned requirements.
The second, and more important, element of keeping sight of the forest is keeping one’s eyes on the prize: those requirements the employer needs that are not available in the U.S. labor market. Focusing on that ultimate issue allows an attorney to clear away the underbrush of multiple overlapping and redundant requirements that add bulk (and the possibility of audit or denial) to the application without materially changing the pool of potentially qualified workers. Since the ultimate issue in the labor certification process is whether or not there is a U.S. worker with a particular skill set, attorneys should focus employers on that skill set and eliminate requirements that are superfluous when considered against the pool of applicants.
An elementary example to illustrate this principle would be an application for employment certification on behalf of an auto mechanic, which requires two years of experience as an auto mechanic or apprentice mechanic. If the employer wants to specify that the experience should include changing spark plugs and mufflers, the attorney should ask the employer directly: how likely is it that an auto mechanic with two years of experience would not have ever changed a spark plug or muffler? In such a case, the first requirement (two years of fixing cars) in all likelihood includes the second requirement (making two very common car repairs). In addition, a U.S. worker applicant who claimed two years of auto mechanic experience, but who admitted to having never changed a spark plug or muffler (perhaps because the applicant only ever worked at an oil-change shop) could be rejected as not really having the experience and skills required for the job.
Similarly, the attorney should review the list of requirements for redundancies: requirements that are inherent in other requirements for the position. For example, obtaining a Clinical Laboratory Scientist license in California requires a person to have worked for at least one year as a laboratory technician. If the position for which labor certification is sought requires a Clinical Laboratory Scientist license, there is no need to say that the position also requires a year of experience as a laboratory technician — no one can meet the first requirement without also having met the second requirement.
A more advanced application of the concept involves keeping a labor certification simple by avoiding a foreign language requirement. The employer is an international industrial machinery company. Selling its machines involves dealing with large capital projects of its clients, and its machines are typically installed as part of a much larger factory construction or upgrading project. The company’s Latin American division wishes to employ a Project Engineer to coordinate the installation of the company’s machinery in construction projects in Latin America. The company wishes to require experience in managing or coordinating civil engineering projects in Latin America, so that the person has experience dealing with government agencies, typical financial arrangements, legal requirements, etc. affecting these multi-million dollar projects. The company also requires that the person speak Spanish.
In this example, counsel may wish to consider simplifying the requirement to include a certain number of years of experience in managing construction projects for Latin American customers, while omitting the Spanish language requirement. While, at first blush, eliminating the Spanish language requirement is counter-intuitive — after all, a person would have to speak Spanish to travel to Latin America and conduct project meetings with the purchaser — on further reflection, a Spanish language requirement does not appreciably narrow the pool of potential candidates; that is, any candidate with years of experience in managing construction projects for Latin American customers is very likely to speak Spanish. By not explicitly stating the language requirement, the employer has avoided a certain audit, but without appreciably broadening the potential candidate pool.
Step 4: Know All The Trees
When lost, it is very helpful to notice the details of the woods around you, and to know which plants are useful and which must be avoided. As discussed above in Step 3, the overall credibility of the application is key to a successful labor certification, and the key to communicating credibility is to communicate details of the employer’s business operations from which the employer’s actual minimum requirements are derived.
The attorney must understand why each and every requirement is necessary to perform a job duty, and why each job duty is necessary to the employer’s business. The relationship may be as elementary as understanding that ability to write C++ computer code is necessary to be able to write a particular type of software because the software is written in C++ code, and the employer’s business is developing and selling that software. As a general and basic rule, therefore, the attorney should be sure that each and every “special requirement” listed in the labor certification is reflected in a corresponding job duty.
The more complicated the requirement and the more it excludes potential candidates, the more the attorney must know about why the requirement is in place. A software company may require a Master’s degree for a particular Software Engineering position, or two years of experience in programming a certain type of software. The attorney must understand the details of the employer’s decision to impose such a requirement: what does a person learn during a Master’s degree program that cannot be learned through a comparable amount of experience? What duties require that knowledge or skill? Since an experienced software engineer can learn a new programming language and use it reasonably fluently within six months, why is two years of experience necessary? Are there other ways to objectively state the employer’s requirement (e.g., “must have completed at least two full software development cycles”)? If the attorney cannot clearly articulate why each and every requirement is necessary for the position, the attorney is not ready to draft the application and advertising.
A good attorney knows the client’s industry and hiring practices in detail, or takes the time to learn those details in the preparation of a labor certification. If the attorney is preparing an application on behalf of a consultant who will help the company’s clients implement Enterprise Resource Planning software for financial managing chains of retail stores, the employer’s job requirements may simply be stated as 5 years of experience in implementation ERP software for retail clients. If the attorney is not familiar with the ERP consulting industry, he or she should take the time to find out that ERP software is typically a large, complex collection of different applications, from databases to reporting tools, used to manage the financial and operational processes of businesses. The attorney would also want to learn about the difference between technical consultants (who typically “get under the hood” and make necessary customizations to the computer code of parts of the system) and functional consultants (who understand the software and its capabilities, and work to understand the client’s operations and how the client’s various work processes can be automated by the ERP system), and understand what kind of consultant is being sought by the employer. The attorney would want to understand how, even among functional consultants, there will be specialization — expertise in implementing an ERP system’s financial components such as automation of General Ledger or Accounts Payable functions is not normally transferable to implementing production management components, such as a Supply Chain Management application. The attorney would want to understand why functional consulting experience in one industry, such as manufacturing, is not transferable to another industry, such as retail. In short, the attorney should strive to understand where the consultant fits in the client’s organization, and from that understanding be able to explain why certain requirements are necessary to fill that role.
While such detailed exploration of the client’s operations and the time to draft an explanation of those operations may seem unnecessary, that exercise is not an empty one. By drafting a detailed written explanation of how the position fits within the employer’s business operations and how the employer’s requirements are essential to the normal operation of the employer’s business as part of ensuring that the attorney has correctly understood what the job and its requirements are, the attorney has prepared the “business necessity” documentation for the application.
Step 5: There Is No Such Thing As “Too Much Communication”
A means of communication, as complex as a satellite phone or as simple as a smoky fire, is a key tool if one is lost in the wilderness. Likewise, the employer, employee and attorney must freely be able to trade information in order for the labor certification process to be successful. Frequent and in-depth communication regarding possible problems or delays in the process will avoid an unhappy employee and an unhappy employer in the future. Realistic estimates of processing times will allow both the employer and employee to plan when they should expect future steps in the process to be able to take place. Communication of this processing information will provide the employer and employee with confidence in how the matter is being handled by the attorney and provide a reserve of goodwill from which the attorney can draw when the inevitable problems arise in the processing of particular cases.
The importance of communication extends to the depth of information that an attorney should seek out from both the employer and employee at the beginning of the process, as noted in Step 4. The employer should be asked to provide detailed explanations of the employee’s role in the organization and the basis for the employer’s requirements of particular skill. If the Department of Labor wishes to challenge the employer’s job requirements, for example, the attorney should be able to immediately communicate why those job requirements are integrally related to the duties of the position and why they are absolutely necessary in order for a person to be able to perform the duties within the context of the employer’s business. Understanding this information at the outset of the case, and having frank communication when the employer’s specification does not seem to rise to the level that the Department of Labor would find acceptable, will avoid much heartache in the event of a future audit.
Because of the importance of establishing a strong relationship with both the employer and the employee, and the necessity to gather the detailed information regarding the employer’s job opportunity and the employee’s role in the company, it is helpful to initiate every labor certification with a conference call or in person meeting between the employee being sponsored, the employer’s human resource representative an/or immigration contact, and the employee’s direct supervisor. This conference call should allow the employer to provide the attorney with detailed information regarding the job opportunity. Routine information, such as the employer’s standard job description and the employee’s detailed list of qualifications, can be gathered using questionnaires in advance of the telephone call. On the call or at the meeting, the employee’s direct supervisor can be asked to articulate the reasons for various job requirements. The supervisor’s stated job requirements can be compared to the company’s standard job description, and can be checked against the human resource representative’s knowledge of company hiring practices and other employee’s qualifications. In addition, both the supervisor and the employee can be made to understand the limitations of the labor certification process, so that when certain requirements must be left out because the employee gained them after having begun work with the employer or because they are outside employer’s normal hiring practices, both the employer and employee will have an understanding of why those limitations are being imposed.
Similarly, on this call the human resources representative can be made to understand the importance of the recruiting process and the human resource person’s responsibilities to track resumes and perform screening of them. The human resource representative can also talk about common types of recruiting done by the employer, so that the PERM recruitment is done within the constraints of the employer’s normal recruiting process. Human resources may also perceive conflicts between the labor certification recruitment and non-immigration issues, which can be best resolved with frank communication on a phone call. For instance, Human Resources may be concerned that the recruitment for the labor certification process conform with the company’s standard recruitment process or its affirmative action process, so an appropriate recruitment plan can be developed.
The conference call or meeting can also provide an opportunity to explain to all participants the timeline involved in the process, so that the employee does not, for example, bother his or her manager thirty days after the initial phone call with a request to find out whether or not the application has been filed yet, as it will already have been explained that the application cannot be filed until at least sixty days after the first advertising is run.
Finally, good communication between the clients often is facilitated by a memorandum on which the employer’s representative and the employee must sign off. After the conference call, a summary of the proposed job description, job requirements, advertisement, advertising plan and related matters should be circulated to all participants. Participants can give their input on whether or not the attorney has correctly understood the substance of the discussion. Circulation of such a memo also provides the attorney with a final opportunity to correct any mistakes before the expense of advertising is incurred.
Step 6: The Obvious Path Is Not Always The Answer
A broad path leading where the hiker does not want to go is little help, and a labor certification for a job that the employee will not be filling in one or more years is equally useless. The Department of Labor, in its PERM regulations, emphasizes that the labor certification process is employer-driven. Not only is the process employer-driven, it is based upon a particular job opportunity at a particular location. By focusing exclusively on a particular job opportunity, however, the attorney may miss a possibility to assist the client beyond the confines of the immediate job.
A lawyer should always counsel both the employer and employee regarding the nature of the labor certification process and the fact that it is tied to a particular job opportunity at a particular time in a particular location. Particularly given the long backlogs in the employment based third preference category, the employer and employee should be counseled about the long length of time the employee will need to work in the position in order to obtain the benefit of the labor certification process. This counseling gives the employer and the employee a basis for planning in the future, because they should be aware that changes in job location or duties will result in the need to file a new labor certification. The discussion during this counseling session may, however, reveal an opportunity for planning around future job opportunities.
While the process may be tied to a particular job offer, there may be other win/win solutions that will meet both the employer and employee’s needs. For example, an employer may regularly hire financial analyst or similar types of employees as entry level employees out of an MBA program, with the expectation that those employees will move within two to three years to other, higher level positions within the organization. Employees in such a position may be interested in starting the permanent residence process as promptly as possible, particularly given the long backlog in many of the employment-based categories. The employer and employee working together may be able to identify a suitable future employment opportunity where the employee’s skills will be necessary and where the employer is having a difficult time recruiting strong MBA candidates.
With a likely future position or positions identified, the labor certification process could then be initiated at that future employment location for the future position. The employer and attorney may wish to be careful to be more generic in their description of the position, given that the actual position offered in the future may not be exactly what was expected. By focusing on the future opportunity, the employer gets a position filled that it would otherwise have difficulty filling, and the employee gets an earlier priority date. Obviously, both the employer and employee need to understand the requirements of the labor certification process, and that the employee must actually take up the certified job opportunity in order to be able to complete the green card process. Where the employer has such a position and the employee is willing to take it, however, this strategy may provide an optimal solution.
Another situation in which an attorney may be able to achieve a result which is win-win for an employer and employee is the common circumstance in which an employer would like to give the employee a substantial interest in the business in order to provide an incentive for the employee. In such a situation, the employee’s “ownership or control” may provide an obstacle to a labor certification. The employer’s interest is in providing an incentive to the employee to continue working. The employee’s incentive is to receive assurance of participation in future profits that he or she creates. The employee wishes to receive an interest in those profits as early as possible. In that situation, the attorney may counsel the employer to provide a right of participation in profits or a right to obtain future ownership interest, but no right to present ownership. A corporate attorney could be consulted in order to have the employee receive warrant for options –the right to obtain an interest in the position in the future at a fixed price — rather than an immediate ownership interest which would cause problems for the labor certification process. By looking outside the immediate problem of the particular job opportunity for the particular employee, the attorney can create a situation where everyone wins and is able to get most of what each would like out of the situation.
Step 7: Every Case Is Your First Case
Even experienced hikers may be overconfident in their ability to get themselves out of a bad situation, and so learn to take every unfamiliar situation carefully. Similarly, even the most experienced practitioners know the rush and feeling of pressure to get everything right that is inherent in preparing a labor certification for a brand-new client, such as a company from which the attorney hopes to receive multiple future assignments. With those cases, the attorney makes a special point of thinking through the application from the beginning, anticipating problems, and taking time to understand the employer’s business and the role of the employee within that business. The attorney communicates, or even over communicates, about the process and generally makes sure to impress the client with the attorney’s management of the process.
While familiarity and multiple, similar applications for a client may not breed contempt in the attorney, it does offer a path of least resistance that may subtly lure the attorney into shortcuts and assumptions about the case that may not be well-founded. While, as the other steps have suggested, the attorney must ensure that requirements and representations in each current labor certification are consistent with representations in past labor certifications for the same client, the attorney cannot simply “cut and paste” a new employee into an old labor certification without going through all the steps of ensuring that the old job description is accurate and the new employee meets all of the requirements as they are stated.
Treating each case as if it was your first means keeping that edge, that healthy anxiety over the outcome of the case, even when it is the tenth or hundredth labor certification for a similar position for a company the attorney has worked with for years.
Labor certification can be one of the most complicated and frustrating parts of an immigration attorney’s practice, and will often be avoided through any means possible. Where the labor certification process is necessary to ensure an employee’s permanent immigration, however, taking these steps will improve the quality of the attorney’s submission and increase the client’s level of satisfaction with the process.
2 In his article explaining the ethical traps of the labor certification process, Colorado attorney Daniel Boyle noted that he falsified information on labor certifications because “the clients were usually nice people, well deserving of residency, who often had no other way of gaining it and/or the business really needed the employee.” From being disbarred, he learned, “It is not my place to circumvent congressional or agency directives, even if I disagree with them. Rather, it is my job to zealously represent my clients within the bounds of the law. I now realize that I must take my clients with the cards that they are dealt and I cannot cheat by giving them a new hand.” Daniel F. Boyle, “Labor Certification Pitfalls,” 9-22 Bender’s Immigr. Bull. 3 (November 15, 2004).
3 In order for an immigrant petition to qualify for the second employment preference, with its generally shorter waiting time than the third employment preference, the labor certification supporting that immigrant petition must “demonstrate that the job requires a professional holding an advanced degree or the equivalent.” 8 CFR �204.5(k)(4)(i).
4 In order for an immigrant petition to qualify for the “professional or skilled worker” portion of the third employment preference, with its generally shorter waiting time than the “other worker” portion of the third
employment preference, the labor certification supporting that immigrant petition must state that a bachelor’s degree or two years of experience is required for the job. 8 CFR 204.5(l)(3)(i), (3)(ii)(B)-(C), (4).
5 Admissibility, and therefore the ultimate success of the process, is relevant both to the employer and the employee, and both are the attorney’s clients in the labor certification process. I will not add here to the reams of paper written on the issue of dual representation in employment-based immigration, but simply state my unequivocal position that the attorney in the labor certification process should regard both the employer and the employee as clients, with all the hazards of dual representation that role entails. Readers wishing to explore the topic further can start with Bruce A. Hake, “Dual Representation in Immigration Practice,” Ethics in a Brave New World 28 (John L. Pinnix and C. Lynn Calder, eds., AILA 2004).
6 The only time I ever undertook a labor certification that would only become useful if the law changed, I made sure that the engagement letter clearly stated that the services included a labor certification, but that a change in the law would be needed for the labor certification to do the employee-client any good. You may talk to the client about potential problems down the road until you are blue in the face, but the client won’t remember that when the case falls apart before the family gets their green cards.
7 Indeed, behind most of the I-140 denials that have wound up in federal court are poorly-drafted labor certifications. See, e.g., Grace Korean United Methodist Church v. Chertoff , Case No. CV-04-1849-PK (D. Or. 2005), available as AILA Infonet Doc. No. 05111563. In that case, the employer had to argue that “the NSC director improperly interpreted the phrase ‘B.A. or equivalent’ to mean ‘B.A. or equivalent foreign degree’ rather than ‘B.A. or the equivalent of a B.A.'” Id., slip op. at 3. If the employer had clearly stated that it considered a combination of education and experience to be “equivalent” to the required degree, the litigation would not have been necessary. By leaving it to the USCIS adjudicator to determine what the employer meant by “or equivalent,” the attorney who prepared the labor certification left an ambiguity about the employer’s requirements that made the NSC’s misunderstanding possible.
8 The best example may be the appropriate preference categorization of the immigrant visa petition if he employer indicates on the ETA-9089 that it requires a Master’s degree but will accept a bachelor’s degree plus five years of experience in an alternative occupation, or “any suitable combination of education, training and experience.” An employer could argue that no less than five years of experience is “suitable,” so that a five-year experience requirement as an alternative to a master’s degree is stated on the labor certification. As USCIS has not yet provided guidance on that point, however, and given the USICIS position that the labor certification must clearly indicate that at least a Bachelor’s degree plus five years of experience is the minimum requirement in order for a petition to be eligible for second preference classification, a labor certification allowing “any suitable combination” may or may not be granted second preference classification.
9 Foreign language requirements are considered “unduly restrictive” and must be justified by “business necessity,” 20 CFR 656.17(h)(2), and seem to guarantee that the application will be audited, in the author’s experience and that of many other practitioners.
10 While this article is not about block-by-block analysis of how to complete an ETA-9089, “Other or special requirements” are listed in Block H.14 and job duties are listed in Block H.10.
11 ERP software is typically referred to by the name of the company which sells it, such as SAP, Baan, or PeopleSoft.
12 20 CFR 656.17(h)(1), See also Matter of Information Industries, 1988-INA-82 (BALCA 1989) (en banc).
13 See Scott M. Borene, “50 Ways to Leave Your Labor … Cert,” II 1994-95 Immigration and Nationality Law Handbook 399 (R. Patrick Murphy, ed., AILA 1994).