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9. Overdue Processing of PERM Cases - At the September 12, 2014 stakeholderengagement meeting, AILA provided OFLC with a list of a sample of long overdue PERMcases, together with questions regarding FIFO processing. An updated representative list ofcases outside of posted processing times is included with this agenda. We appreciateOFLC’s willingness to review these cases and provide insight as to what might be the causefor delay. At the September 2014 meeting, OFLC noted that some of these cases may bestill pending due to policy questions, litigation, additional employer verification activities, andother considerations requiring further review. Many of the pending applications date back tolate 2012 to early/mid 2013 and most are at the initial review (non-audit) stage. Would OFLCplease provide an update regarding backlogged cases generally?OFLC Answer and Discussion:OFLC reported that it had researched the cases previously provided by AILA. Of the 51 caseexamples, 37 have been certified, 1 was withdrawn, 1 was denied, and 2 cases were audited.The remaining 10 cases are for a specific employer and are on hold for a particular policydecision. As the results of the sample cases provided by AILA demonstrates, there arecircumstances where cases will sometimes fall behind, and occasionally cases are held pendingthe outcome of a particular policy decision that will affect multiple cases. However, OFLCreiterated that it attempts to process cases on a “first In, first out” basis, and that processingtimes posted on iCERT are maintained as accurately as possible.10. Update on Reversal of “Section K” Denials - Thank you for your assistance in acceptinga list of PERM cases that were denied on the basis of a missing credential in Section K, andreviewing these cases for possible reversal and certification. The way that OFLC hasworked with stakeholders to address these cases is an example of how the stakeholderliaison process is mutually beneficial: OFLC reduces its backlogs by removing certifiablecases from the Motion to Reconsider and BALCA queues, and employers get their casescertified faster without wasting unnecessary time and resources on avoidable motions andappeals. Please provide an update on the status of OFLC’s review of these cases, and theexpected timeframe for completing the review. Is there anything further we can do to assistOFLC in getting these cases resolved as quickly as possible?OFLC Answer and Discussion:OFLC confirmed that it will reverse denials issued on the basis of a non-experience qualificationthat was missing from Section K as long as that is the sole reason the case was denied. It iscontinuing to work through the list of cases provided by AILA and other stakeholder groups. Inaddition, employers can file a Motion for Remand with BALCA and e-mail Harry Sheinfeldfollowing the procedures described at AILA Doc. No. 14022555 to expedite the identification ofSection K cases pending with BALCA. Those cases will be returned to OFLC for review andcertification if the Section K issue is the only basis for denial.11. Withdrawal Confirmation and Re-filing of Cases After Withdrawal – We understand thatOFLCs current policy is to allow employers to have pending only one labor certificationapplication for the same job opportunity for the same employee at any given time. Once acase is filed, however, there may be circumstances where the employer discovers an errorand wishes to withdraw the application, rather than waiting for the application to be denied.When an application is withdrawn, the system does not always appear to immediately reflectthat withdrawal, and waiting for the system to update is often not an option given expirationof the prevailing wage determination or the labor market test. If the employer immediately5AILA Doc. No. 15032362. (Posted 3/23/15)

re-files the application before the withdrawal is acknowledged, it might appear that twoPERM applications are pending for the same employee for the same job opportunity.Historically, when OFLC discovered two pending applications that appeared to be based onthe same job opportunity and for the same employee, it typically contacted the employer orthe attorney to inquire as to which application should proceed. Is this still OFLC’s practice?If not, what steps can an employer take to immediately re-file an application without fear thatthe application will be denied due to a withdrawal that has not yet been processed?OFLC Answer and Discussion:When two PERM applications are pending with the same employer for the same beneficiary forthe same job, the policy is to contact the employer to ask which application should proceed.Therefore, it should not be necessary to wait until the withdrawal is confirmed to file a newPERM application. AILA noted that it has received reports of denials issued on this basis, andOFLC stated that employers may file a Motion for Reconsideration if they believe this policy hasnot been followed.12. Review of Audit Template Language – We understood from the September 2014Stakeholder meeting that OFLC was considering a review of the entire PERM audit process.Is that still a project that OFLC is planning to complete?Should OFLC decide to review its audit templates, whether as part of a larger process or justlooking at particular templates, AILA would suggest a revision to language on audits relatingto business necessity and on-the-job training of U.S. workers, as the current language canbe somewhat confusing. In particular, we would suggest the following:a. Business Necessity - Where an employer’s requirements are undulyrestrictive, the employer must establish the business necessity. The currentaudit language, however, is unclear regarding its application. Below is oneexample of the language from the current template:Please provide business necessity for all/any levels(s) of education,experience, training, skills and/or qualifications for the job opportunity of aas listed on the ETA Form 9089.This language seems to indicate that the employer must explain the businessnecessity for each and every requirement listed on the ETA Form 9089. Is OFLCintending to ask for business necessity for the degree listed, or for a degree onlyif it exceeds the degree noted on O*Net? Is OFLC intending to ask for businessnecessity for each skill listed, or only for skills not part of the O*Net description?Is OFLC intending to ask for business necessity for the years of experience, oronly for experience requirements that exceed the SVP?Below is another example of language from the current template:The employer must provide business necessity for any requirementexceeding the minimum baseline requirement of SPV level 7.This language has been included for cases with Job Zone 4 positions (SVP 7). Itsuggests that if the employer requires experience above the low end base (in thiscase 2 years) a business necessity explanation is required. To maintain better6AILA Doc. No. 15032362. (Posted 3/23/15)

consistency with 20 C.F.R. § 656.17(h), and to provide a more focused request,we would suggest instead the following language:Please provide business necessity for any experience requirement thatexceeds the upper end of the SVP for the following special skill(s):[The reviewing officer should then list the skill (or skills) which are beingviewed as potential unduly restrictive.]b. On-the-Job Training to Acquire Skills - The regulations prohibit therejection of U.S. workers for lacking “skills necessary to perform the dutiesinvolved in the occupation, where the U.S. workers are capable of acquiringthe skills during a reasonable period of on-the-job training is not a lawful jobrelated reason for rejection of the U.S. workers.” However, the current auditlanguage requires an employer to provide an explanation of why anyunqualified U.S. worker cannot be trained on-the-job, whether they wererejected for not satisfying the degree and experience requirements or forlacking a skill. Common language in audits on this point is:Please provide documentation explaining why the U.S. applicantsdeemed “not qualified” could not have attained the skills necessary toperform the duties listed in section H.11 during a reasonable period of onthe-job training.The language of the regulation limits on-the-job training only to cases where theU.S. applicant lacked the skill required. We would therefore suggest thefollowing alternate audit language:For any U.S. applicant who lacks a required skill or skills, please providedocumentation explaining why the rejected U.S. applicant could not haveattained the skill(s) necessary to perform the duties listed in section H.11during a reasonable period of on-the-job training.In addition, for cases under the Special Handling regulation, OFLC should draftlanguage that is specific to the recruitment standard for college and universityfaculty. We would suggest the following language:For Special Handling cases for college and university faculty, pleaseprovide documentation explaining why the foreign worker was “morequalified” than any rejected U.S. applicant.OFLC Answer and Discussion:OFLC thanked AILA for its suggested revisions to the audit language, and stated that review ofthe language used in audits is part of the overall review of the PERM process that is currentlyunderway. As with other PERM issues being reviewed, OFLC could not provide an estimateregarding the timing of any changes that might be made.PERM Denials7AILA Doc. No. 15032362. (Posted 3/23/15)

13. Pre-Hire Testing Requirements. At the September 2014 stakeholder meeting, AILAprovided examples of several PERM cases that had been denied without audit because ofpre-hire testing requirements. During the discussion of this issue at the meeting, AILA notedthat numerous similar cases had been approved in the past, both in the context of auditsand supervised recruitment. OFLC noted that it would review this issue in greater detail. Isany further update available at this time?OFLC Answer and Discussion:OFLC is continuing to review this issue, and asked AILA to resubmit examples of these denials.(Additional Question Raised at Stakeholder Meeting that was not on the Agenda)Employer-Provided Wage SurveysStakeholders have noticed that the NPWC has been rejecting College and UniversityProfessional Association (CUPA) surveys that have long been accepted and has indicated thatsuch surveys now do not meet the ACWIA definition. Could OFLC provide an explanation as towhy these surveys are being rejected?OFLC Answer and Discussion:OFLC indicated that if the CUPA survey includes for-profit institutions (e.g., University ofPhoenix), the survey does not meet the ACWIA definition. The employer must demonstrate thatthe survey is based on data that is only from ACWIA employers, i.e., non-profit educationalinstitutions, and for educational occupations.AILA requested that in the OFLC’s PERM process review, it also consider issuing guidance onthe requirements for qualifying as an ACWIA employer, given the difference between DOL andUSCIS regulatory definitions.AILA also requested that OFLC provide guidance regarding acceptance/rejection of employerprovided surveys. OFLC indicated that when a flaw in an employer-provided survey iscorrectable, it will sometimes issue a Request for Information (RFI). However, when an RFI willnot make a difference, i.e., a non-correctable fact such as the inclusion of a for-profit institutionamong the list of employers for a CUPA survey, the request will be denied without an RFI.8AILA Doc. No. 15032362. (Posted 3/23/15)

many Radford surveys are updated monthly, some are updated only quarterly. During the September 12, 2014 stakeholder meeting, OFLC indicated that an employer seeking a prevailing wage based on an alternate wage survey is free to upload documentation from the survey company demonstrating that the survey is the most recent edition. Is there a