Immigration Attorney
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December 27, 2004

The Department of Labor today published its long awaited rules for PERM, the streamlined process for obtaining labor certification, the first stage of the green card process for foreign nationals seeking permanent residence through their employment.

PERM will replace the existing process for labor certification. All cases filed under current 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; all new applications will have to comply with the new PERM requirements.

A brief summary of the major changes being implemented in PERM follows.

PERM Application Process

• Prevailing Wage to be determined by State Workforce Agencies prior to application filing
• Pre-Application recruitment will be required for all applications during the period 30 days to 180 days prior to filing
• PERM Applications are to be 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
• New DOL website for completing and submitting the PERM application form
• 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, but fees may be implemented in the future

PERM Decisions

• The DOL Certifying Officer (CO) may approve, deny, require an audit; following an audit, the Certifying Officer 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
• Decisions are expected within 45 to 60 days
• 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

Prevailing Wage Determinations

• State Employment Services Agencies (SESAs), a.k.a. State Workforce Agencies (SWAs), will administer Prevailing Wage Determinations (PWDs)
• Employers must pay 100% of the prevailing wage for the position (95% rule eliminated)
• New 4-tier system for prevailing wages will replace the existing 2-tier system
• Employers may submit alternative wage surveys for consideration by the SESA if conducted within the 24 months prior to the application – weighted averages preferred, but median wage may be used if 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)
• Employers may file supplemental information for consideration following a prevailing wage determination
• Employers may appeal a SWA’s PWD to the DOL Certifying Officer; the CO may affirm, modify or remand to the SWA; Employers may appeal a CO’s decision to BALCA

Job Requirements

• Job requirements must represent the employer’s actual minimum requirements and that they bear a reasonable relationship to the occupation and are 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 (Delitizer requirements are now part of the regulation)
• 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

Pre-filing Recruitment Requirements for Professional Positions

• Job Order placed with SWA for 30 days
• 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
  • the employer’s name must appear in the ad
  • the ad must apprise applicants of the job opportunity
  • a descriptive job title, name of the employer, and the means to contact the employer may be sufficient
  • job site identification required where the job site is unclear (e.g., company headquarters is elsewhere, or employer has multiple job sites)
  • additional information permitted provided the same requirements also appear on the Form ETA 9089
• 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 – 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
• Pre-filing recruitment requirements do not apply to applications for Schedule A occupations, college or university teachers, and sheepherders
• Report of recruitment results must contain:
  • description of recruitment steps undertaken and results achieved
  • # of hires
  • # of U.S. workers rejected, categorized by the lawful job related reasons for rejection
• “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”

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

Conversion of previously filed applications to PERM

• Employers that filed applications under existing regulations may refile the application without loss of the original filing date by (i) submitting an application for an identical job opportunity after complying with all PERM filing and recruitment requirements, and (ii) 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
• Refilings must be made within 210 days of the withdrawal of the prior application

Impact of Layoffs

• If there has been a layoff 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
• A layoff is defined as any involuntary separation of one or more workers with cause of prejudice; it includes personnel actions characterized by an employer as reductions-in-force, restructuring, or downsizing
• A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought

Special Provisions for closely held corporations, partnerships, etc.

• Employer must provide documentation of the existence of a bona fide job opportunity
  • Articles of incorporation, partnership agreement, business license or similar documentation
  • List of all corporate/company officers and shareholders/partners, titles and positions, and description of the relationships to each other and to the beneficiary
  • Financial history of the corporation/company/partnership, including the total investment in the business entity and the amount of investment of each officer, incorporator/partner and the beneficiary
  • Name of the business’ official with primary responsibility for interviewing and hiring applicants for positions within the organization
  • Name of the business’ official with control or influence over hiring decisions involving the position
  • If the beneficiary is one of 10 or fewer employees, the employer must document any family relationship between the employees and the beneficiary

Special Provisions for Teachers, Nurses and Domestic Workers

• Teachers:
  • Employers must document that the beneficiary was selected through a competitive recuirtment and selection process and that the beneficiary was found to be more qualified than any of the U.S. workers who applied for the job
  • The recruitment report must include total # of applicants and the specific job-related reasons why the beneficiary was more qualified than each U.S. worker who applied for the job
  • Employers must submit a copy of at least one advertisement placed in a national journal and evidence of all other recruitment sources utilized, and a copy of the final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien at the completion of the competitive recruitment and selection process
• Nurses
  • CGFNS Certificate is required; proof of passing CGFNS nursing skills exam not sufficient – passage of the NCLEX-RN exam may be substituted for the CGFNS Certificate
  • Temporary licensure in the state of intended employment is no longer sufficient
• Domestic Workers
  • Other special requirements for certification of domestic worker positions

We will provide more information as soon as it becomes available.