Last month, the Department of Labor’s Office of Foreign Labor Certification (OFLC) announced that it had “temporarily removed” its latest Frequently Asked Questions (FAQ Round 14) document from its website. Originally published on March 6, the FAQs instructed that an employer must “define its [actual minimum job] requirements with respect to each skill listed” in Section H.14 of the labor certification application (ETA Form 9089), or risk denial of the application.
Historically, employers have used ETA Form 9089’s free-form fields such as H.14 to clarify requirements stated elsewhere in Section H, or to introduce additional requirements, such as experience with certain design engineering tools, or knowledge of certain insurance software. The FAQs included several hypotheticals to illuminate the alleged deficiencies in these and similar statements. Per the FAQs, even qualitative terms like “proficiency” would need additional quantitative context. The provisions of FAQ Round 14, which OFLC withdrew citing “stakeholder input,” would have applied to all PERM applications filed as of March 20, 2017.
OFLC’s two-week lead strained notions of sufficient notice under a program often characterized by terms like “exacting” and “letter-perfect;” PERM regulations themselves explicitly prohibit modification of applications. Yet, OFLC was giving employers just days to reconcile pre-filing recruitment – conducted as early as September 2016 – with applications drafted under the new standard. Employers who got it wrong in a Certifying Officer’s judgment risked the years-long review process. Employers opting to delay filing to conduct new recruitment risked losing time, recruitment costs, and legal expenses, not to mention morale, as employees poised to benefit from post-sixth-year H-1B extensions failed to secure timely priority dates; and business, as the continued availability of required human resources grew uncertain. Not surprisingly, in response to the FAQs, the American Immigration Lawyers Association (AILA) DOL Liaison Committee requested that OFLC at least delay implementing the new FAQs for 180 days.
The Committee also explained – first, during a routine meeting with DOL and more recently, in a position paper – why FAQs were not an appropriate medium for OFLC’s “guidance.” The implicit impetus for the FAQs was the Board of Alien Labor Certification Appeals’ (BALCA) decision in Smartzip Analytics, 2016-PER-00695 (BALCA November 9, 2016). In Smartzip, a BALCA panel found that no duration requirement for special skills exists in PERM regulations or in ETA Form 9089 instructions. The FAQs effectively authorized the denial of applications that follow Smartzip and, in turn, existing PERM rules – although, by attempting to patch the regulatory vulnerability Smartzip exposed, OFLC validated BALCA’s decision. Even the grace period, however brief, signaled that the FAQs articulated a new rule – not “guidance” – that should be subject to notice and comment under the Administrative Procedure Act. It remains to be seen how OFLC will revamp the FAQs it temporarily removed. But any new FAQs that ultimately authorize OFLC to deny outright applications that currently are approvable under PERM regulations and form instructions should meet the same opposition and fate.
Regulating by FAQ discounts the mutual benefit of the rulemaking process which acknowledges that regulatory goals are best effectuated by giving due and timely consideration to all stakeholders’ concerns about the rules that might govern them. In its communications with DOL, AILA’s Committee raised concerns about several of the FAQs’ substantive provisions including their vagueness. If this is to be believed, OFLC’s inability to articulate a clear rule suggests not a need for more detail across every application, but a need for expertise. Notably, Smartzip was denied without audit, OFLC’s existing regulatory mechanism for requesting more detail. Further, in its discussion, BALCA criticized the Certifying Officer’s treatment of the employer’s silence about a duration requirement for a special skill as an omission.
The clarity OFLC seeks about employers’ job requirements should come from employers. But DOL should solicit clarity from employers, first, as stakeholders, and in their business judgment as employers of US workers, and as experts on their actual hiring needs; not as petitioners subject to a standard that OFLC can’t quite describe but will somehow recognize when they see it on the ETA Form 9089.
OFLC’s response is forthcoming. In the meantime, employers are reminded generally to share any potentially clarifying information about PERM job requirements with a competent immigration attorney.
For more information, please contact a Goel & Anderson attorney.