Along with the scheduled phase-out of the Backlog Elimination Program on September 30, 2007, apparently the Office of Foreign Labor Certification had been developing a change in the foreign labor certification policies towards the direction of improvement of online ETA 9089 filing process by clarifying some ambiguities and confusions in the present ETA 9089 form and achievement of integrity of the online filing applications. The scheduled revision of ETA 9089 form was first released during the AILA Annual National Conference in Orlando, Florida in June 2007. In releasing the plan, the leaders of the OFLC just explained only rosy and positive aspects of the plan by explaining that the change would remove ambiguities in the current form which had produced massive denials at early stage due to the computer matrix decision process. We welcome such move. However, it appears that there was more to the OFLC decision to revise and use a new form beginning from April 1, 2008. The first potential intended goal might be to firm up and clarify its regulatory restrictive standards more narrowly involving the employers' educational and experience requirements for the jobs adhering strictly to the concept of the Job Zones in the O*Net and the standard of the level of education which the employer could require under the published Appendix A of the regualtion. Problem is that the definition of Job Zones was downgraded in a number of occuations. For instance, all IT occupations had been downgraded to Job Zone 4 that can require only a bachelor's degree plus maxium two years of work experience. This also affected the definition of another requirement that the qualification requirement must be "normal" for the job in the specific industry. Another policy which was reflected in the PERM regulation was adoption of so-called Kellogg standards mandating requirement of "Any Suitable Combination of Education, Training or Experiences" whenever the alien could be qualified for the job only through the alternative requirement in job titles, education, or experience. Under the PERM regulation, the employers who deviate from these standards could be required to justify such deviation by the evidence of so-called "business necessity" and turned into an audit track for the purpose. In worst cases, the employers could be asked to start fresh the recruitment process under the supervision of the Certifying Officer using the revised requirement.
The problem is that as anyone can recognize, the definition of Job Zones is in a number of occupations far from the reality and the requirements by the employers in the real world. Besides, strict adherence to the Kellogg standards has led the employers to facing a denial of I-140 petitions recently, particulaly in Nebraska Service Center, when such language is used in the PERM applications, for the reason that "any suitable combination of education, training or experience" means that the employer should not reject U.S. workers based on lack of a bachelor or master's degree and the I-140 petition cannot be qualified for EB-2 or even EB-3 where "professional" education is required in the labor certification application. Over the period, the leaders of OFLC recognized the foregoing problems in the regulation and O*Net system as well as conflict of DOL standards with the USCIS policy and manged the PERM adjudication decisions flexibly. For these reasons, most of the aliens could obtain the PERM approvals despite the employers' deviation from the foregoing definitions, standards, or rules thanks to the flexible operation and implementation of such definitions, standards, or rules by the Certififying Officers and the leaders of the OFLC.
Unbeknownst to the consumers, however, behind the sugar-coated justification of the PERM form revision was an apparent decision of the DOL to change their policy to implement the definition, standards, or rules more closely to the languages by clarifying those terms in the revised form. Obviously such policy change will accompany increased audits of the applications for the integrity of the PERM applications and detection of frauds through such audits. As we reported earlier, there was some hint of the forthcoming change in the policy which was buried in the DOL Performance Report. It reported a projected slow-down of processing times and certification rate in FY 2008. Then came a semi-official unofficial announcement by the leaders of OFLC in an AILA conference in September 2007 that the OFLC had already initiated such increased audit process. Additionally, beginning from August 2007, employers and their lawyers started reporting that they had been receiving "audits" even for clean-cut cases leading to their speculation that the OFLC had been sending out audits on a "random" selection basis. Currently, it apepars that the employers are receiving audit notices either based on the OFLC's narrow reading and application of definitions, standards, or rules or on a random selection. Considering the fact that this is just a beginning of the changed policy and practice of OFLC rather than an end, the stakeholders of the labor certification system cannot but express a serious concern with the potential delays in the processing times and the subsequent backlogs in the labor certification system again. We admired the leaders of the DOL for having successfully eliminated a huge number of backlog applications pumping in huge financial and human resources over a period extending years. In this regard, on-going and upcoming policy change may go against the "public interest" from the perspectives of the tax payers and their constituents as such policy will definitely lead to another cycle of "backlog" trap in the long run. Management is an art of skill and wisdom rather than a molded rule, as operation of rules and standards depends on the interpretation and circumstances surrounding the rules. We urge the leaders of the OFLC not to go back to the old mismanaged system and policy of the DOL and continue the late policy of flexible management and implementation of the PERM applications rules and standards.