Liaison work has long been at the heart of AILA member services. Liaison, when effective, is a critical bridge for members who are facing issues in their practices, helping to raise those issues with the various agencies to work toward a solution. However, in recent years, some have begun to question the efficacy of liaison efforts and whether AILA might be better served pursuing other options, such as litigation, to push back on critical issues.
I have long held the belief that AILA’s liaison relationship with government agencies can and should be both respectful and spirited, and that it is through a liaison system built on trust, mutual respect, and solid relationships that we can achieve AILA’s mission of providing robust member service. This kind of liaison relationship does not foreclose the option of litigation, political advocacy, public relations, or other avenues for change, but it does serve as the bedrock for effective engagement with the government. This approach works and will continue to work as we move forward. Take, for example, a recent AILA liaison development that we hope will make a palpable difference in members’ practices.
For those of us who practice business immigration, we have long questioned how the Department of Labor (DOL) classifies minimum requirements as “normal” in the context of H-1B prevailing wage and Program Electronic Review Management (PERM) system practices. DOL’s view of “normal” directly impacts the wages issued in the prevailing wage context. Our clients don’t want to pay their foreign national employees less or more than the market rate – they just want to pay them like they pay all of their other employees. But as long as DOL considers a Bachelor’s degree and two years of experience to be the normal requirement for a Nuclear Engineer, for instance, we will always see prevailing wage determinations that are far in excess of the actual market wage. Historically, AILA has only liaised with the DOL’s Office of Foreign Labor Certification (OFLC), which is not the office within DOL involved in setting the normal requirements for occupations. A true fix to this problem, therefore, requires an expansion of effective liaison relationships within the DOL.
I began looking at this issue in detail several years ago, which was the time when the proposed 2018 Bureau of Labor Statistics (BLS) revisions were posted for comment. I worked on AILA’s comment team and we drafted a comprehensive comment for consideration. We followed the comment by exploring who really were the decision makers on normal job requirements and were able to schedule meetings with the BLS, which deals with the wage data collection for DOL. While insightful, we concluded that BLS’s focus is on data collection and would be unable to really impact the core issue of occupational requirements with which we grapple. The question of Job Zones (which determines “normal” requirements) is ultimately controlled by those responsible for the Occupational Information Network (O*NET), yet another office within DOL.
In June 2015, I joined the AILA DOL Liaison Committee and took on the project of tracking down people within DOL to try to arrange a meeting with O*NET. Last fall, I was able to connect with a key manager within O*NET, and she graciously agreed to schedule a telephonic meeting. Since that phone call, we have had two in-person meetings with O*NET and had positive conversations exploring both short-term and long-term ideas to update how O*NET is classifying what is “normal” to an occupation, which directly affects the wage determinations issued by OFLC in both the H-1B and PERM context. Moreover, in a critical step forward, O*NET has already met once with OFLC and both offices are committed to meeting again in the future. It is this type of direct communication with agencies that is vital to improving our practices, and I believe these meetings were a direct result of AILA liaison efforts.
Our efforts are also appreciated by the agencies. In our meeting with O*NET last week, the O*NET representative commented that meetings with AILA have been incredibly helpful as we were raising practical issues that they have never before considered. She was grateful for the information we have provided and appreciated AILA’s efforts in helping ensure that the services O*NET provides can be as responsive and accurate as possible.
There certainly are times when liaison alone is not enough, and AILA should pursue litigation or other mechanisms to push back on the agencies when at an impasse. But we should not discredit the invaluable service that AILA’s liaison efforts provide to our membership. We can and should continue to explore other ways to push member issues with the agencies with which we work daily, in a respectful, trusting manner.
Written by Sarah Peterson Stensrud, Member, AILA Board of Governors