By Brandon Meyer, Associate

I attended the U.S. Department of Labor’s (“DOL”) public forum on upcoming changes in both the PERM Labor Certification and Labor Condition Application (“LCA”) programs held in San Diego, California on February 4, 2009.  Bill Carlson, Administrator of the Office of Foreign Labor Certification, represented DOL.  In attendance were interested members of the American Immigration Lawyers Association (“AILA”) and representatives of private sector employers.  This memorandum serves to provide you with a summary of the presentation.  Any errors or omissions are the sole responsibility of the author.

The purpose of the DOL Forum was to announce upcoming changes in both the PERM and LCA programs.  Through the creation of the so-called “iCERT System,” the long-term goal of DOL is to create a single portal for employers and/or their legal representatives to manage the creation of LCA, PERM, H-2A, and H-2B applications.  Employers and/or their legal counsel will be able to create sub-accounts for one standardized company account that will attempt to streamline data collection between the LCA and PERM forms, unlike the current system in which the LCA and PERM application accounts exist in parallel without any intersection. 

Keep in mind that a fully integrated system will allow for greater DOL monitoring and oversight of a company’s LCA and PERM programs, which makes the issue of risk management and program oversight even more critical.  Although the timetable for the initiation of an integrated iCERT system described above is uncertain, DOL outlined the incremental steps that will occur on the road to this centralized system.

The formal announcement of the iCERT system will be published in the Federal Register sometime in March 2009.  The announcement will contain a URL for users to create a corporate accounts and representative sub-accounts.  The iCERT system will become operational on April 15, 2009 with the introduction of a new ETA-9035 LCA form.  While users begin to familiarize themselves with the new LCA form and the iCERT system, the current LCA form and system will remain operational in parallel until May 14, 2009.  On May 15, 2009, the old LCA system will be disabled except to allow for status checks and withdrawals of LCA’s created under the old system.

The new LCA form does not contain many material changes, merely a representation of the information that is currently collected.  The main changes are in boxes B2 and B3, which continue DOL’s movement away from the old Dictionary of Occupational Titles (“DOT”) codes exclusively toward usage of the Standard Occupational Classifications (“SOC”).  The new LCA form instructions provide a mapping between the DOT and SOC codes.  Another noteworthy change is in box B7, which allows a company to obtain an LCA for multiple beneficiaries, with a breakdown of how many beneficiaries fall into the categories of: 1) new employment; 2) extensions: 3) change in employer; 4) amended petitions, among others, that are intended to mimic data collection on USCIS Form I-129.

The most significant change in the new LCA system will be that the instantaneous certification that has been a feature of the online LCA system will be gone forever, making planning issues between companies and their legal representatives even more critical when concerning time sensitive cases.  Once the new LCA form becomes operational on April 15, 2009, DOL states that users can expect LCA certification sometime between a few minutes and up to seven days.  DOL officials strongly implied that a DOL program officer before certification will review every LCA and further implied that systemic abuse of the current instant certification model has resulted in this new less user-friendly system.  Once an LCA has been certified, the designated contact will receive an e-mail directing them to retrieve the certified LCA from the iCERT system.

On July 1, 2009, iCERT will be extended to new PERM filings, although the existing online PERM system will continue operating in parallel until August 1, 2009.  A new version of the ETA-9089 Form will also be introduced when the iCERT system becomes operational within the PERM context.  The new 9089 attempts to address many of the flaws that emerged with the current 9089 forms.  DOL has attempted to design a form that allows an employer to better clarify and explain itself whenever alternative requirements are acceptable for a position. 

While some of the assembled audience did highlight potential flaws that might emerge with the new PERM form in practice, DOL has made a serious attempt to rectify some of the confusion with the present 9089 forms and deserves praise for doing so.  Most significantly, DOL has attempted to address the contentious issue of when employers will accept “any suitable combination of education, experience, or training,” the so-called “Kellogg language” issue that has been a fertile source of confusion and complaints.  The new 9089 form has a new category for “suitable combination” requirements, in which the employer or designated representative specifically states in box g.25.b whether or not the employer accepts “any suitable combination”.  Employers and their representatives should be happy with this change.

Another potential issue not highlighted by any of the participants can be found in Section K. Declaration of Foreign Worker.  Labor certification beneficiaries are asked to 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 adjustment of status based on this application.”  It remains to be seen whether this declaration will have any long-term conflicts with existing AC-21 provisions for adjustment of status portability.

DOL did not address the issue of whether audits will increase or whether the criteria for undertaking an audit will change.

I hope this memorandum is useful and informative.  Should you have any questions or require the assistance or second opinion of an attorney at this time, please contact Immigration Compliance Group.

Read more about the iCert portal here

 
iCERT System Implementation Timelines
For your Reference - 2009 Timeline for Implementation

LCA Form 9035

Apr 15 OFLC begins receiving new LCA form
for processing through iCERT System
May 14 OFLC continues receiving existing LCA
form through LCA OnLine System
May 15 OFLC disables filing of existing LCA
form, but keeps LCA OnLine System up
for case status checks/withdrawals

PERM Form 9089

Jul 1 OFLC begins receiving new PERM form
for processing through iCERT System
Jul 31 OFLC continues receiving existing PERM
form through PERM OnLine System
Aug 1 OFLC disables filing of existing PERM
form, but keeps PERM System up for case
status checks/withdrawals