Minutes of Local Liaison Meeting with DOL Region VI

Cite as "Posted on AILA InfoNet at Doc. No. 02081342 (Aug. 13, 2002) ."

MINUTES
DOL/SWA/AILA Teleconference 
July 25, 2002

The meeting of the DOL VI Region/AILA (Chapters within the region)/SWA Liaison Group met by Teleconference at 10:00AM on Thursday July 25, 2002. The roll call of participants was waived in the interests of getting the maximum substantive time for discussion of the issues presented. The following are the written questions submitted to DOL and the written and verbal responses from VI Region Certifying Officer, Martin Reyes.

I. DOL QUESTIONS
1. Are there any new policy interpretations, BALCA cases, or general administrative letters that Region VI would like AILA to advise employers about? Does Region VI have any suggestions or tips for employers?

• New information was included in the RIR Lay-off Letter (the Ziegler Memorandum of 4/05/02 and the Clarifying Memorandum of May 28, 2002. Under scenario #2 (lay-offs at the petitioning employer) once a rebuttal to the NOF is received at DOL they will either 1) accept the explanation and continue RIR processing; 2) Order add’l recruitment; or 3) deny (RIR processing) and send to SWA for regular processing. 
  
  
• Zones/SVPS Issues (see clarification letter - attached) & (attached memo from Josie Gonzales) - see "PDF Resources" Section. 

2. Have there been any significant changes in personnel or staffing at Region VI?

• Two Student Temporaries have been hired for a 45-day term. DOL will be losing all of their contract staff in the San Francisco office shortly which will delay the issuance of letters, etc. but should not materially effect the processing times. 

3. Please advise on turnaround times for each type of application that is adjudicated at Region VI: 

4. Are there web sites DOL reviews in assessing labor market conditions and/or layoffs in a particular area? If so, can you advise us as to which sites you review?

The DOL relies heavily on the WARN Notices, major newspaper web sites and news articles on the Web. We also rely on the Company’s own website after we hear that they are laying-off workers.

5. If the DOL remands a case to the SWA after determining that there have been industry wide layoffs in a particular area (either at the request of the employer or after determining that an employer's additional recruitment efforts are inadequate), what priority does the case receive in terms of regular labor certification processing at the SWA?

The application would go to the states regular application-processing queue. RIR priority processing would end. In California, Bill Vernon, EDD Administrator, reports that the case would go to the end of the recruitment queue (currently processing 5/06/02). As to the other states where there is one queue (assessment) Mr. Rios said he would review the procedures with the SWAs in the region and also how this was being handled in other regions and would determine the appropriate placement. 

The following is being provided to AILA in order to clarify how applications will be handled once the RIR waiver is denied. 

GAL Number 1-97, Change 1, dated May 11, 1999, address "Measures for Increasing Efficiency in the Permanent Labor Certification Process. The GAL also provides the operating procedures for Reduction in Recruitment Requests (RIRs). This letter states "If RIR is denied because the recruitment is not acceptable, the application shall be returned to the SESA (SWA) for regular processing in the order in which it is received along with other applications." In a subsequent memorandum from Dale Ziegler, Chief, Division of Foreign Labor Certification, dated March 18, 2002, further clarification is provided as to the placement of applications returned to the SWA for recruitment issues/deficiencies. According to this memorandum, "In order to clarify the intent of GAL 1-97, Change 1's statement regarding state priority in processing of denied RIR's, it is ETA policy that when an RIR is denied the application shall be returned to the SWA for regular processing in the order of the application's priority date."

Therefore, when an RIR application is denied and returned to the state for supervised recruitment, the application will be placed in the regular processing queue according to the application's Local Office Priority Date. Once the RIR waiver is denied, we no longer afford it priority-processing status and the application takes its place in the regular application-processing queue. 

6. Are specialty cooks still considered a shortage occupation? Is recruitment the same as for other labor certifications (i.e., one print ad plus other forms of recruitment demonstrating a pattern of recruitment)?

The requirements have not changed.

7. The following statement has been received by members: “Your request for RIR cannot be approved. The documentation submitted does not substantiate that adequate recruitment efforts, as described in GAL 1-97, were conducted within the last six months prior to filing.” If the employer has multiple print ads within the six month period prior to filing and additional other evidence of recruitment within the six month period, and believes an error has been made, what method would DOL like the employer to follow communicate this possible error?

The DOL examiner will review the information provided and if RIR cannot be affirmed it will be sent to the SWA for regular processing. Once the RIR waiver is denied, the application will not be reviewed until it comes up for review in the regular queue. Mr. Rios pointed out that although there is always a possibility for an error, the actions of the reviewing officers are accurate and denial is usually for a valid reason. For instance, the ads may not be appropriate for the occupation, the publication may not be appropriate, the ads were not/cannot be identified in the copies of the ads submitted, the ad was placed in the wrong section of the paper, etc. However, if there is an error he wants the attorney to contact their DOL liaison representative who can, in the unusual circumstance that an error has been made, contact his office (He emphasized that this should be the exception, as he does not want to take time away from adjudicating cases to reiterate why a case was denied) 

8. May an employer amend the ETA 750 Part A form at the SWA level? If so, what steps should the employer take to amend the application?

If the employer needs to make minor changes to the ETA 750 A … these need to be submitted in writing to the SWA signed by the employer. If the changes are substantive, then the employer will need to file another application with the required signatures. 

9. A Washington AILA member just received a letter from DOL confirming that they received a Standard L/C case that was filed last year with WA ESD. The attorney believed that it would have been forwarded as a clean case. DOL's letter says it will take approx. 18 months to process the case (from the date they received it). In the last liaison teleconference DOL said they were current on Seattle cases. Please clarify? 

The acknowledgement letter is a “boiler plate” letter and automatically generated. It applies to all applications received from all offices. This is one of those instances, where a clerical error was made and the different time-line that applied to Washington cases was not corrected before the letter went out.

10. Is the "Region IX Employment Service Letter 99-09" still valid and applicable to the expanded Region VI? It is the 9/20/99 letter to SESA administrators on the issue of appropriate publications for labor certification application recruiting. 

Yes, the letter is still valid. However, we are in the process of looking at the letter from the standpoint that it does not include any of the former Region X states. We will probably issue an updated version sometime in the coming months.

11. The Zeigler Memo appears to state that if the CO is “”confident” that qualified American workers “may have been available at the time of filing” RIR should be denied. Has Region VI made this determination in any cases? If so, what data was utilized to make this determination? If so, was there a distinction made between entry level and more sophisticated positions? If so, was the employer given an opportunity to rebut this determination before denying the case? If you have not made this determination in any cases to date, do you anticipate using this immediate denial option?

The decision to deny a case is not made until the employer has the opportunity to offer “rebuttal” information. Also, remember that the denial is for an RIR waiver. The underlying case is not denied but simply reverts to regular processing.

12. With respect to “layoffs in the industry”, please confirm that where additional advertising is requested, an advertisement placed within 60 days prior to receipt of the additional advertising letter may be submitted. How are you determining layoffs in the “industry”? What if, for example, the occupation is “software engineer”, but the industry is "medical device research and development"? 

We will accept the additional advertising if conducted within a period 60 days prior to the date of the letter requesting the additional advertisement. 

The second part of the question … we (DOL) does not determine layoffs. The Region takes the information that we get from various sources (see above) and, then we ask the employer to provide information to help us make the determination.

13. At the AILA conference, Pat Stange of the DOL national office said that the SVP of 7 < 8 meant up to four years. This of course means that a job with a master's degree and any experience at all exceeds the SVP. It is surprising that whereas in the past a Master's degree and six months, one year, two years, or three years of experience was within the SVP, it would now be deemed to be unduly restrictive. 

DOL needs clarification of this question, which can then be reviewed at the next liaison teleconference.

14. It's our understanding that Region VI knew, as of last year, that Zone 4 was less than an SVP of 8. For a very short time, initially, DOL mistakenly believed that it included SVP 7 and 8. The resolution of the issue was to let us point to the underlying SVP that has a higher experience requirement, and we need not fear that the requirements would be viewed as excessive. Is this policy acceptable to DOL?

AILA member Josie Gonzales has prepared an excellent summary regarding the conflict between the SVP skill levels for the DOT classifications and the SOC/Job Zone skill levels. (See attachment) - go to the "PDF Resources" Section. 

15. A DOL response sentence states: "If the employer responds that the SVP in the DOT reflects a higher SVP, then DOL will refer to the DOT SVP for the occupation when the case is forwarded for DOLs review." Does this mean that the SWA will not issue an assessment notice if we reference the SVP up front in our cover letter? Further that the DOL not issue a NOF on this issue or kick the case to the end of the queue as a problem case? Is DOL in agreement that the experience requirements the SVP will be controlled the SVP and not by the Job Zone? 

See Josie’s letter. (go to the "PDF Resources" Section.) 

16. If the SWA issues an assessment based on company layoffs, is it proper for DOL to ask the company to report on national layoffs or just layoffs in the area of intended employment?

We are primarily addressing layoffs in the area of intended employment. 

17. The Assessment statement issued the end of June referred to recruitment conducted prior to June 7, 2002. The 7/02/02 Q&A refers to cases filed prior to June 7, 2002. If employer conducted recruitment on the basis that the job was SVP 8, will they then need to redo the recruitment? There is no explanation of why the clarification broadens the change of policy from cases where recruitment was conducted prior to June 7 to cases filed prior to June 7. Is this an inadvertent error?

See Josie’s letter. (Go to the "PDF Resources" Section.) 

18. In Washington State, we start out by giving our SWA (the ESD) a proposed DOT code for the occupation. Thus, there should be no reason or them to assess the case to obtain a DOT code. Please comment. 

We expect that the State SWA will still do an assessment to determine that the correct DOT code was applied. It would then advise the petitioner if adjustments were necessary.

Any news/information/tips that DOL would like forwarded to our members. We appreciate your continuing efforts to keep us up to date and informed on activities at DOL 

Mr. Rios assured the group that he will continue to clarify the issues as they arise and would keep the AILA membership advised of any changes in DOL guidelines.

Supplemental DOL Questions

1. DOL issued the employer the one-day print ad letter. Employer placed the ad, however, unlike the previous ads the employer narrowed the job requirements to the specific position offered and listed the requirements stated on the ETA 750 Part A. At the annual AILA conference in San Francisco Harry Sheinfeld specifically stated that it would not be necessary to use a generic ad covering many job areas but that the employer could use an ad for the specific job in question. However, DOL then issued a letter stating that they did not find the recent ad to be "consistent with" the previous ads.” Is this a change in policy from that stated by Mr. Sheinfeld ? Do the ads need to be "identical to" instead of "consistent with" previous ads? If not, then can we get some guidance as to what is meant by "consistent with"?

It appears that this questions is combining the regular perm program advertising requirement when the application is remanded to the state for supervised recruitment AND the language in the layoff letter regarding the additional ad requirement. There was an extensive discussion amongst the participants on this issue. Mr. Rios took the position that it was permissible to limit the ad to the position sought but that there could not be additional limiting criteria added. Several AILA members suggested that since applicants would have to meet the qualifications for the position, as listed on the ETA 750A it made sense to list these and save the company and unqualified applicants from a review of their qualifications. Mr. Rios did not seem inclined to accept this argument and said that regulations did not recognize that level of change in the recruitment to be “consistent with” previously used “generic” ads.

The March 18, 2002 memorandum from Dale Ziegler states "the Certifying Officer should provide the employer with the option of publishing one additional advertisement consistent with the ad provided in the original RIR application". Mr. Sheinfeld’s comments reflect the fact that there is nothing that prohibits employers from running a more specific advertisement as long as the requirements are compatible with the ETA 750 A. However, it is important to keep in mind that if the application contains unduly restrictive requirements, it would not be appropriate for RIR processing. Therefore, if the ETA 750 A has unduly restrictive requirements the RIR waiver should be denied and the application placed in the RO queue for regular processing.

2. What additional recruitment efforts will be required when a company with an approved labor cert closes and a new employer, not connected to employer one, wishes to file a second labor cert for the same employee? (Assuming this is not past the 180 days since filing of the I-485 for that employee.

When a company closes (before the 180 days from filing, by the applicant, of the I-485) that application and labor certification terminates. If there is a new employer that wishes to hire the employee they must start at the beginning of the process.

3. Under the PERM program, it appears that an application will be audited in the event that there are any "special requirements". Does this mean that if any requirements appear in Box 15 of the L/C that the application would be audited?

Cannot respond to questions on new PERM program until regs are finalized.

In California, we are advised that generally attorneys do NOT put anything in Box 15, but the specific requirements are included in the job description, and applicants may be disqualified for a failure to be able to perform the job duties, however in Washington and Oregon, an applicant can only be disqualified for failing to meet the minimum requirements for the position, NOT for an inability to perform the job. Could you please comment on your suggested resolution of this question in light of the PERM proposals 

Same as the previous question.


II. CA/WA/OR SWA QUESTIONS

1. Personnel or procedure changes at the SWA Office? 

2.  Processing times and workload:

* Processing date for the Recruitment phase at CASWA is 5/06/02.

5. Does the SWA have any suggestions or recommendations for employers for filing applications?

CALIFORNIA: Bill Vernon reported that they have hired 17 new staff members. There are currently a total of 68,120 cases pending at the CASWA. One of his biggest problems is with case going into recruitment where the ads that are run are not consistent with the amended ETA 750A form. He suggested that attorneys carefully annotate and initial changes on the attorney file copy of the ETA 750A so that staff members can check that placed ads are accurate.

OREGON: Pat Sanderlin did not have a chance to offer comments during the teleconference but sent the following in a post-conference e-mail.

In my template letters I have mentioned that people should make amendments to the ETA 750 Forms on an 'amendment form.' There is no amendment form, I will have that information revised as soon as I can. In the interim, people should make changes on plain paper, headed to indicate which Part (A or B) it pertains to. 2x original signature copies.

WASHINGTON: Karen Walter did not have an opportunity to offer comments but sent the following in a post-conference e-mail:

Tony Aragon is making a suggestion to Martin Rios regarding the conduct of the conference calls. We are suggesting that AILA members have a
pre-conference call to the call made to DOL and States, and that one person be a spokesperson. In that pre-call, perhaps questions/proposed suggestions
can be worked out. This may eliminate some of the confusion and save time during the joint call. Similarly, we are recommending that states and DOL
have a pre-call.

We also recommend that Washington guidance be followed on issues mentioned in the conference call of July 25 until we have more direction from USDOL.

CA LMID : No questions were received. No comments were made.

The next DOL/AILA/SWA Liaison Teleconference will be held on August 14, 2002 at 10:00AM The moderator will be Mailine Wong .