Volume VIII, Issue 3 April/May 2014

In This Issue
1. USADWEB Attends 2014 AILA Annual Conference
2. USADWEB Employees Make a Difference
3. Prevailing Wage Validity Period Debated by BALCA
4. United States Unemployment Rate April 2014
5. PERM Processing Times as of April 4, 2014

Clients' Comments Corner:
See what our clients are saying about us!

1. USADWEB Attends 2014 AILA Annual Conference

Some conferences don’t amount to a hill of beans, but there’s nothing Common about the 2014 AILA Annual Conference in Boston! USADWEB looks forward to greeting current and prospective clients from June 18th to 21st. Stop by Booth 421 to enter our raffle to win the latest Apple iPad Air!

PLUS: Refer a friend to sign up for our NewsBlast, and you'll receive a double entry in the raffle. So hang a lantern aloft in the belfry arch – and let us know we’ll see you in Boston!

2. USADWEB Employees Make a Difference

USADWEB is proud of its employees who give back to the community. Last year USADWEB donated to the disaster relief in the aftermath of Typhoon Haiyan in the Philippines. This month, two longtime employees are participating in charity fundraisers.

This Saturday, May 10th, April Scrivner is competing in the CrossFit for Cystic Fibrosis (CF for CF) challenge through Great Strides and the Cystic Fibrosis Foundation. She's competing to support Megan Lauffer, who uses CrossFit training to help manage her disease. Cystic fibrosis is a chronic, inherited disease that affects the lungs and digestive system of about 30,000 children and adults in the United States. Great Strides is the largest fundraising event for the Cystic Fibrosis Foundation, which helps raise funds for research and drug development. Research and new treatments have already helped to extend the life expectancy for those living with the disease. To learn more and to contribute, visit April's donation page.

HanaLyn Colvin is participating in the Pancreatic Cancer Action Network’s PurpleStride Delaware 5k walk on May 31st. HanaLyn is walking in support of her friend Donna Lithgow Stollings, who lost her husband, Mark Stollings, to pancreatic cancer in 2011. Pancreatic cancer is a devastating disease, with a five-year survival rate of just 6%. It is the fourth leading cause of cancer death, yet receives only about 2% of the funding in the National Cancer Institute’s budget. According to the Pancreatic Cancer Action Network, it is estimated that more than 46,000 Americans will be diagnosed this year, and more than 39,000 will die from the disease.  PurpleStride generates awareness and funding for research, grants, and advocacy efforts, as well as much needed patient support.  If you are interested in learning more about how you can contribute to this cause, please visit HanaLyn's donation page.

HanaLyn and April are proud to participate in these worthy events, and appreciate the additional support that their friends and colleagues are able to give.

3. Prevailing Wage Validity Period Debated by BALCA

Occasionally USADWEB is asked about the regulations surrounding the prevailing wage validity period. Determining the correct time frame for your recruitment period can be a delicate task. The recruitment period and the application filing date must be coordinated around the validity period of the prevailing wage determination (PWD).

The regulation at 20 CFR § 656.40(c) states:

(c) Validity period. The National Processing Center must specify the validity period of the prevailing wage, which in no event may be less than 90 days or more than 1 year from the determination date. To use a prevailing wage rate provided by the NPC, employers must file their applications or begin the recruitment period required by §§ 656.17(e) or 656.21 of this part within the validity period specified by the NPC.

This regulation provides that the employer must either begin the recruitment process OR file their application while the prevailing wage is valid. This means that if the recruitment advertising is started before the prevailing wage is obtained, the application must be filed before the wage expires. Alternatively, the application may be filed after the prevailing wage has expired as long as the recruitment was initiated during the PWD validity period.

The language in this regulation has been contested over recent years, eventually leading to an en banc review by the Board of Alien Labor Certification Appeals (BALCA) in the Matter of Karl Storz Endoscopy-America (December 2011). The review addressed the discrepancy in BALCA decisions in three previous cases: Quadrille Wallpapers & Fabrics, Inc. (December 2010), Manhattan Jewish Experience (December 2010), and Horizon Computer Systems (May 2011). In the first two cases, BALCA upheld the Certifying Officer’s (CO) denial of the labor certification applications because both the initial recruitment and the application filing date occurred outside the scope of the prevailing wage validity period.

However in Horizon Computer Systems BALCA interpreted the language differently. Taking into consideration the regulatory history and discussion, BALCA determined that the phrase “begin the recruitment” did not refer only to the earliest form of recruitment but rather to any step in the recruitment process. The Employment and Training Administration’s (ETA) Notice of Proposed Rule Making (NPRM) from May 2002 states, “Since employers filing applications for permanent labor certification can begin the required recruitment steps required under the regulations 180 days before filing their applications, they must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the PWD to rely on the determination issued by the SWA.”

An FAQ from the Office of Foreign Labor Certification in March 2005 also stated that the employer “does not need to wait until it receives a prevailing wage determination before beginning recruitment” as long as none of the advertisements contain a wage that is lower than the determination that is eventually received. BALCA interpreted this to mean that as long as any of the recruitment is conducted during the validity period, the employer may file its application after the prevailing wage has expired even if the employer had already initiated recruitment before the prevailing wage was received.

In the en banc review, BALCA rejected this interpretation, noting that neither the NPRM nor the FAQ obviate the employer’s responsibility to abide by the regulation at 20 CFR § 656.40(c). The regulatory history merely emphasizes the option that the employer has to begin recruitment prior to receiving the determination. The language of the regulation still holds them accountable to file the application before the PWD expires if they choose to begin the recruitment outside of the validity period. In other words, the “either/or” stipulation still applies.

Furthermore, BALCA analyzed the phrase “begin the recruitment” and found that in order to make it fit the interpretation in Horizon Computer Systems, the recruitment would have to be viewed as “beginning” with every individual step. The en banc panel decided that “the use of the definite article ‘the,’ combined with the reference to ‘recruitment’ in the singular, precludes this interpretation.” The phrase “begin the recruitment” refers to the recruitment process as a whole, not in part, and any first step therefore initiates the recruitment process as a whole.

BALCA also addressed the additional arguments that were made by the Employer as well as in an amicus brief by the American Immigration Lawyers Association (AILA). Responding to the criticism that changes to the language of the regulation in 2009 affected the intent, BALCA affirmed that the changes overall were technical in nature to clarify or correct typographical errors in the original wording. “Begin the recruitment” was changed to “begin the recruitment period,” which BALCA held to have the same substantive effect. The reference to the State Workforce Agency (SWA) issuing the PWDs was updated to reflect the procedural change to the National Processing Center (NPC). Lastly, the cross-reference to Section 656.17(d), which relates to re-filing applications, was corrected to appropriately reference Section 656.17(e), which governs pre-filing recruitment.

As a result of the en banc decision, employers must be careful to ensure that either their initial recruitment step or their application filing occurs during the validity period. If both occur outside of PWD validity period, the case risks a denial.

4. United States Unemployment Rate April 2014

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The Bureau of Labor Statistics report was just released due to a delay from the government shutdown. The unemployment rate decreased again from 6.7% in February and March to 6.3% in April, according to the Bureau of Labor Statistics.

5. PERM Processing Times as of April 4, 2014

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews September 9 2013
Audits January 31 2013
Reconsideration Requests to the CO April 2014
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

Clients' Comments Corner

Our law firm relies on USADWEB for all of our advertising. Their professionalism is impeccable and always on time. We are proud to transfer their service to our clients. They take the burden of placing ads off our shoulders and replace it with peace of mind. There is never a question from the Department of Labor regarding the ads they post as they are very efficient. We definitely will keep placing our ads with them. Thank you for your services!

(Miami, FL)


USADWEB, LLC. is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For more than half a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume VIII, Issue 3 April/May 2014

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