On December 27, 2004, the U.S. Department of Labor published a new regulation for the department’s Permanent Foreign Labor Certification (PERM) program. PERM is the new way of filing labor certifications, eliminating the old two methods: RIR and the “traditional” DOL monitored system. The PERM program helps meet workforce needs when there are no available American workers to fill an available job. Applications can be submitted on or after March 28, 2005.
All pending LC/RIR cases filed under the old rules are being transferred to DOL backlog reduction centers (BRCs); applications filed between now and March 28, 2005 will also be transferred to the BRCs for processing. Once the PERM program officially begins on March 28, the DOL will no longer accept applications for the current RIR or regular labor certification process. Effective March 28, 2005, all labor certification filings must be PERM compliant.
The good news for employers and attorneys practicing in this area is that labor certifications may be approved in as fast as 60 days. If you are familiar with the proposed regulation however, you will be pleasantly surprised at the other changes in the final PERM regulation as most are favorable to employers.
A brief summary of the major changes being implemented in PERM follows below. Please note that this summary in general in nature and you are invited to contact us to go over specific cases and questions in detail. We can help you determine how these rules affect your existing labor certification/RIRs and new PERM cases you many wish to now pursue.
Conversion of previously filed applications to PERM
PERM does allow for the withdrawal and “re-filing” of regular and RIR cases filed before the effective date of March 28, 2005 without loss of the original filing date by (i.e. a “conversion” process):
- Submitting an application for an identical job opportunity after complying with all PERM filing and recruitment requirements, and
- Withdrawing the original application
- A job opportunity will be considered identical if the employer, beneficiary, job title, job location, job requirements, and job description are the same as those stated in the original application, including all accepted amendments
- The filing of an application under PERM that is identical to an application under existing regulations will be deemed to be a withdrawal of the original application regardless of whether the employer’s request to use the original filing date is approved
- A refiling must be made within 210 days of the withdrawal of the prior application
DOL Issues Partial Clarification of Policy Regarding Multiple Applications for Labor Certification
The Department of Labor posted on December 20, 2005 a new FAQ that clarified of its policy on multiple applications in the PERM labor certification program, but left open the question of whether filing a PERM application will jeopardize a pending RIR or Traditional labor certification application.
The essence of DOL’s policy is that only one PERM application can be filed and pending for the same employee for the same job opportunity at any given time. DOL also states that only one RIR or Traditional application for the same employee for the same job opportunity can be pending at the same time for labor certification applications that were filed under the rules in effect before PERM and remain pending at a DOL Backlog Elimination Center.
DOL did not announce any policy regarding the crucial issue of whether or under what conditions it would permit employers to have an application filed under PERM for the same employee and same job opportunity for which an application is pending at a Backlog Elimination Center, stating instead that it would engage in further discussions on this issue:
This FAQ does not address the situation in which an application for the same employer, alien and job opportunity is pending under both the prior RIR/Traditional] and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.
The new FAQ included instructions on procedures for withdrawing duplicate or multiple PERM applications, and announced a January 19, 2006 deadline for completing all withdrawals. Beginning January 19, 2006: (1) if multiple applications from an employer for the same alien and same job opportunity are still pending under PERM, DOL will assume that the employer wishes the last-filed application to be processed and the other pending PERM applications for the same alien/job opportunity will be denied; and (2) if an application for a particular employer/alien/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/alien/job opportunity, DOL will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined in the FAQ.
The complete FAQ is available online athttp://atlas.doleta.gov/foreign/faqsanswers.asp#filing12
How the PERM Application Process Works
- The Employer must conduct a bona fide recruitment campaign 30 to 180 days prior to filing
- PERM Applications are filed directly with DOL (Applications may be filed either electronically or by mail using a single new Form ETA-9089 – Employers must attest to having met all PERM requirements for the proposed job opportunity and that no )
- Employers do not submit supporting documentation with the PERM application but must retain supporting documentation for 5 years for audit purposes No filing fee at this time
- Decisions are expected within 45- 60 days; however many decisions are taking up to 4-5 months, while others have taken 3 weeks.
Prevailing Wage Determinations
- The State Employment Services Agencies (SESAs), a.k.a. State Workforce Agencies (SWAs), must administer Prevailing Wage Determinations (PWDs) prior to the PERM filing
- Employers must now pay 100% of the prevailing wage for the position (instead of prior 95%)
- A New 4-tier system will be used to determine for the prevailing wage
- Employers may submit alternative wage surveys for consideration by the SESA if conducted within 24 months prior to the application (using either arithmetic mean or median wage if mean or average wage not available)
- Prevailing Wage Determinations may be valid for 90 days to 1 year from the date of the determination (discretion of the SESA)
- A wage set forth in a collective bargaining agreement (CBA) is still binding.
- Of great benefit is the requirement that if the SWA rejects the revailing wage survey presented by the employer, it is required to provide written notice of the rejection, specifying the reasons that the survey was unacceptable. The employer may then make a one-time supplemental submission to request reconsideration of the decision. If the prevailing wage request is again rejected, the employer can either file a new prevailing wage request or request review by the Certifying Officer within 30 days of the determination. If the Certifying Officer (C.O.) affirms the SWAs decision to reject the survey, the employer has 30 days from the C.O.’s decision to appeal to BALCA.
- Nonprofits, higher educational institutions, and governmental research organizations have often complained that it is inappropriate to compare their wages against those offered in the private sector. The new PERM regulation rectifies this problem by allowing these types of entities to have their wages compared with similar entities in the area of intended employment.
Recruitment Requirements for Professional/Nonprofessional Positions
Under PERM, an employer must perform specific advertising based on the type of position offered, i.e., professional and nonprofessional. Professional positions are defined as “an occupation for which the attainment of a bachelor’s or higher degree is a usual educational requirement”. A nonprofessional position would then be a position that does not require at least a bachelor’s degree.
For nonprofessional positions:
- The employer must place a job order with the applicable SWA
- Two Sunday newspaper advertisements must be placed within 6 months of filing the application
- An internal posting must be placed at the job site for 10 consecutive business days
For Professional Positions:
- Job Order placed with SWA for 30 days (in California, www.caljobs.ca.gov)
- Two (2) Sunday print ads must be placed in a newspaper of general circulation in the geographic area of the proposed place of employment between 30 days and 180 days prior to application filing; ads must include: the job title, name of the employer, and the means to contact the employer
- Employers may substitute one National journal ad for one Sunday newspaper ad where the position requires experience and/or an advanced degree
- Three additional recruitment steps required for “professional positions” – employers may submit documentation of any 3 of the following types of recruitment activities:
- Job fairs
- Employer’s website ads
- Job search website
- On-campus recruiting
- Trade or professional organizations
- Private employment firms
- Employee referral program with incentives
- Campus placement offices
- Local and ethnic newspapers
- Radio and television ads
Only one of the alternative recruitment steps for professional positions may consist solely of activity conducted within 30 days of the filing and one of the steps may have taken place more than 180 days prior to the filing.
For Non-professional and professional positions:
- Both professional and nonprofessional positions require completion of an internal posting at the location of employment for 10 consecutive business days, AND
- Notification in “any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer’s organization.”
- The posting must be completed a minimum of 30 days prior to filing the PERM application
- Job requirements must represent the employer’s actual minimum requirements, must bear a reasonable relationship to the occupation, and must be essential to perform the job in a reasonable manner (i.e., based on business necessity)
- A foreign language requirement must be accompanied by a justification based on business necessity
- Employer must not have hired workers with less training or experience for substantially comparable jobs
- Beneficiaries may use experience gained while working for the employer if such experience was gained in a position not substantially comparable to the position for which certification is sought
- A “substantially comparable” job or position means a job or position requiring performance of the same job duties more than 50 percent of the time
- Employers may be required to provide position descriptions, percentage of time spent on the various duties, organization charts, and payroll records in order to document that they have not hired workers with less training or experience for substantially comparable jobs
Report of Recruitment Results Must Contain:
- Description of recruitment steps undertaken and results achieved
- Number of hires
- Number of U.S. workers rejected, categorized by the lawful job related reasons for rejection
- The Certifying Officer may, after a review of the recruitment report, request resumes of U.S. workers. Note that there is a 5-year document retention rule. At this point, it is unclear how stringently DOL would interpret this highly burdensome requirement but employers might consider setting up a detailed, well-documented process for the review of applicants to the job opportunity, which, along with the recruitment report, can be presented to the Certifying Officer in case of an audit.
- Additionally, an employer could show that applications/resumes rejected for lawful, job-related reasons are treated the same as all applications/resumes received, i.e. that rejected applications/resumes are placed into the employer’s general resume database for the same amount of time that all applications/resumes are stored, and that they, like all other applications/resumes, may be considered for other position openings with the employer. While we still do not know how important the retention of resumes and applications will be, employers should at least consider putting processes into place that could meet its burden in an audit situation that limits the amount of voluminous paperwork it would otherwise need to retain.
- NOTE: PERM regulations now state that “A U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training”. “Reasonable period” is not clarified.
- It may be beneficial for an employer to continue to track its general recruitment efforts similar to those recruitment efforts tracked for RIR purposes. In this way, an employer may bolster an audit response by not only submitting data from the specific PERM-recruitment report, but also broader data showing that it has been unable to locate sufficient qualified and available U.S. workers and continues to have multiple position openings for the position for which the application for permanent employment certification was filed.
Determinations & Labor Certification Validity
- If the Certifying Officer grants the labor certification, the employer and/or the employer’s attorney will receive notification of the Final Determination. If the case is denied, the Final Determination will contain information on the reason for denial and outline the requirements for review of the decision. If the Certifying Officer finds that the employer filed to produce required documentation, or that the documentation was inadequate or contains a material misrepresentation, the employer may be required to conduct supervised recruitment for any future labor certification application filing for up to two years.
- After a determination is made, employers will have 30 days to file a request for review with the Board of Alien Labor Certification Appeals (BALCA). Unlike the current appeal system, however, BALCA’s authority to remand a case to a Certifying Officer for further consideration or fact-finding and determination has been eliminated.
- Similar to the current rule, a labor certification is valid indefinitely. However, the Department of Homeland Security or the Department of State may invalidate a labor certification upon a finding of fraud or willful misrepresentation of a material fact involving the application. Further, the Certifying Officer may revoke approval of a labor certification if he/she finds that the certification was not justified. No definition of “not justified” is included in the regulations. In such a situation, the employer will receive a Notice of Intent to Revoke and will have 30 days to respond to the Notice before the application approval is revoked.
PERM Decisions/Audit Procedures
- As stated, the DOL Certifying Officer (CO) can use its discretion to approve, deny, or require an audit of the PERM case
- If audited, the CO may order supervised recruitment (to be administered by the CO instead of the SWA)
- No criteria in the regulation for ordering an audit or for ordering supervised recruitment – some applications will be randomly selected for audit
- Employers will have 30 days to respond to an “Audit Letter;” Certifying Officers may grant a single 30 day extension “for good cause.”
- Failure to respond to an Audit Letter will result in denial of the application, and may result in a finding of fraud or misrepresentation
- If the CO determines there was fraud or misrepresentation on an application, the CO may penalize the employer by ordering supervised recruitment for all applications filed by the offending employer for 2 years
- The CO may revoke a prior approval at any time after providing notice of intent to revoke – employers will have 30 days to submit a rebuttal; the CO will issue a decision within 30 days of receipt of the employer’s rebuttal evidence
Post-Decision Options for Employers
- Employers may file a request for reconsideration within 30 days of a denial
- Employers may file a request for review by BALCA within 30 days of a denial
- No new information may be submitted in support of the application
Supervised Recruitment Requirements
- CO may order supervised recruitment for any application, whenever appropriate
- One ad must be placed in a newspaper of general circulation for 3 consecutive days, one of which must be a Sunday
- The CO may require as an alternative an ad placed in a professional, trade, or ethnic publication
- Employer must supply a draft ad to the CO for review and approval within 30 days of being notified that supervised recruitment is required – the ad must include the wage offered (a wage range is permissible provided that the lower end of the range is at least as high as the prevailing wage for the position
- Extremely detailed recruitment report will be required
Impact of Layoffs
If there has been a layoff (i.e. a reduction in force, downsizing or restructuring) by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration.
Please note that the PERM regulations have special provisions for closely held corporations, partnerships, etc., Teachers, Nurses and Domestic Workers. Please discuss, on a case-by-case basis, if these sections would apply to your situation.
Form more information about PERM, please call the Heller Immigration Law Group, LLP at 1-800-863-4448 or visit our website and send us an email