Harsh BALCA decision shows need for PERM reform

In (Matter of Frontline, 4/8/11) the Board of Alien Labor Certication (BALCA) found that where the recruitment report was signed only by the attorney, without indicating that the attorney is an appropriate representative under §656.10(b)(2)(ii), that the employer failed to attest to the results of its recruitment. This BALCA decision upheld the denial of the PERM labor certification by the U.S. Department of Labor. This is another example of the harsh and arbitrary way that the U.S. Department of Labor operates the PERM process. 

PERM is the process whereby U.S. employers seek certification from the USDOL that U.S. workers are not available to fill a certain job. Once the USDOL issues a labor certification, the U.S. employer can proceed to file an immigration petition for a foreign worker. PERM is commonly used to obtain green cards for foreign physicians who are helping to fill severe medical shortages that exist in many rural parts of the United States.


The USDOL's PERM regulation and the way that the program is operated, are often arbitrary and capricious. The USDOL's prime objective is to deny PERM applications whenever possible, and often for very technical and clerical reasons. In the Matter of Frontline case, the employer's recruitment report was signed, not by the employer or the employer's authorized representative, but it was signed by the attorney. BALCA's decision rightly pointed out that the report should have been signed by the employer or its designated representative (not the attorney). However, this was a "clerical" error that could have been corrected with a remand procedure, whereby the USDOL would simply notify the employer that it needed to submit an employer signed report. 


As a result of this decision, the employer has probably lost several thousand dollars in fees and expenses, and the foreign worker has lost valuable time toward obtaining permanent residence. It would be difficult to calculate the amount of money that this has cost the U.S. economy in lost efficiency, but when multiplied over many dozens of similar results, I would estimate that the costs could be in the millions of dollars. In the PERM process, the employer is required to submit a perfect application or response to audit, without margin for human error. It is interesting to note in the Matter of Frontline case, that the USDOL, in its initial denial decision, mistakenly referred to the wrong basis for denial of the case. The USDOL then had to submit a corrected decision of denial. So, it appears that the USDOL is permitted to make any number of mistakes and is permitted the opportunity to correct them. However, well meaning U.S. employers, who are struggling to comply with the USDOL's ultra-complex regulatory scheme, are permitted no leeway whatsoever.


I have long advocated that the PERM regulation should be reformed and made more user friendly. The USDOL should be willing to allow the employer to amend or correct the PERM application and its audit response, whenever it appears that a simple clerical correction will cure the process. The USDOL can always reserve the authority to deny the opportunity for an employer to amend, whenever the USDOL believes that the labor market has not been adequately tested, or to prevent fraud. The USDOL should abandon its 1970's attitude that the U.S. worker is its sole constituency. It should recognize that U.S. employers and skilled foreign workers, working in the U.S. are also valuable contributors to the U.S. economy. In today's economy, skilled foreign workers help improve the efficiency of employers, they allow U.S. employers to obtain the skilled workers they need, and ultimately help preserve U.S. jobs. Economic studies have consistently shown that the labor market is not a 'zero-sum" game. Immigrant workers do not generally displace U.S. workers.


An excellent example of this dynamic is realized whenever a foreign physician comes to a rural community to practice medicine. The economic benefit to these communities is significant. The foreign physician and his family typically represent a high-earning family that raises the level of economic activity in the community. Also, the hiring of a new physician in a small town usually leads to the creation of multiple good-paying jobs, for nurses, medical technicians, clerical workers and others.

Launching of Physician Immigration Blog

Hello, I'm Barry Walker. I live and practice immigration law in Tupelo, Mississippi. Since 1994, my immigration law practice has been largely devoted to the representation of hospitals, clinics, physician practices and foreign medical graduates, in connection with physician immigration to the United States. Our principal clients are in Mississippi, Tennessee, Missouri and Virginia, but we represent clients from all over the U.S.

Some people might wonder how an immigration practice can exist and thrive in a rural state such as Mississippi. Actually, there are several reasons why our practice is particularly relevant to a rural state. For example, Mississippi has a large percentage of counties (60 out of 82 counties) that are full-county Health Professional Shortage Areas (according to the U.S. Department of Health and Human Services). This means that many rural counties and communities in Mississippi have a difficult time attracting and retaining U.S. born physicians. So, these communities rely heavily on foreign medical graduates to provide both primary care and to cover the specialties. When we refer to foreign medical graduates, we are referring to physicians who have been educated at medical schools outside of the U.S. However, before being licensed in the U.S. these physicians have to pass a battery of examinations and screenings. Also, almost all states require that foreign physicians must complete at least 2-3 years of advanced training in the United States, before licensing. So, whenever a patient confers with a foreign physician in a U.S. hospital or clinic, they can be confident that the physician as highly qualified and trained as U.S. born physician.


We will be posting here at least once a week, to discuss immigration issues for foreign medical graduates. Our topics will include:

• Obtaining the J-1 waiver
• Changing status from J-1 to H-1B
• Special issues for physicians who have trained as H-1B's
• H-1B cap exemptions
• Green card options

Barry J. Walker
Immigration Attorney
Walker and Ungo
PO Box 1023
Tupelo, MS 38802
662.841.0629
barrywalke@gmail.com
www.walkerungo.com