PERM - Frequently Asked Questions - 3-3-05
Immigration Attorney
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What standards will be used in making labor certification determinations under the new, streamlined PERM system?
The determination will continue to be based on: whether there are not sufficient United States workers who are able, willing, qualified and available; whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations. What provisions have changed in the new system?
Filing: Supporting documentation is not submitted with the application. Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA). Refiling: An employer may, at anytime, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and ajob order has not been placed by the SWA for the original application. Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable. Prevailing Wage: Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage. Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used. Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days. Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing. NOTE: While pre-filing recruitment was the basis for reduction-in-recruitment under the regulation in effect prior to March 28, 2005, the recruitment provisions in the new system differ. Recruitment: Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations. Recruitment: Sunday edition newspaper advertisements are required. Recruitment: A job order, obtained through the SWA, is required. Recruitment: The special handling provision has been removed. Optional recruitment provisions for college and university teachers are in § 656.18. Provisions for college and university teachers of exceptional ability in the science and arts are covered in § 656.5. Revocation: Certifying Officers have the authority to revoke approved labor certifications. Adiudication: Certifying Officers will either certify or deny applications. The interim step under the previous regulations of issuing a Notice of Finding (NOF) has been eliminated. Filing How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?
NOTE: Employers will not be permitted to submit applications by facsimile. An application for a Schedule A occupation is filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center. How does the employer file an application electronically?
NOTE: Additional information regarding personal identifiers will follow. NOTE: The web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application the employerfiles. Under this option, each time an employerfiles an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically and the employer will only need to enter the data specific to the application at hand. Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?
What forms or documents must the employer include in an application?
Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it. How long must supporting documents be retained?
When must applications be signed?
Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid. NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed. When is PERM effective and must the employer wait until the effective date to begin recruitment?
If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10. Re-Filing Pending Labor Certification Petitions. Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?
NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking 'yes' to question A-i, is deemed to be a withdrawal of the original application. NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile. Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?
For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application. Ability to Pay What is meant by the "employer's being able to place the alien on the payroll" under § 656. 1O(c)(4)? How does it differ from having funds available to pay the alien's wage or salary in § 656. 1O(c)(3)?
For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the aliens proposed entrance into the United States. While the employer may be fiscally able to pay the alien, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the alien on the payroll. Notice of Filing Posting Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?
An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment. Must the ten consecutive business days posting of the notice of filing time frame end at least 30 days prior to filing?
Advertising / Recruiting How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?
For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.i7(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation. When advertising for a professional occupation, must the required steps, ie., the job order, the two print advertisements, and the three additional recruitment steps be different?
Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional 'trade or professional organizations' recruitment step, or count the job order again as an additional 'web site other than the employer's' step. Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" additional step requirement for professional occupations?
What is considered an acceptable newspaper and/or acceptable journal and is there a published list?
Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers. The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity. NOTE: In the case of a rural area where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation. When must the advertisements In the newspaper or professional journals be placed?
However, if the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation. This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area. For journals, there is no specific edition requirement, however, the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application. Must all recruItment take place at least 30 days, but no more than 180 days prior to filing?
However, none of the steps may take place more than 180 days prior to filing the application. What level of detail regarding the job offer must be included in the advertisement?
The regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity. NOTE: While employers will have the option to place broadly written advertisements with few details regarding job duties and requirements, they must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity. If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?
Does the job location address need to be included in the advertisement?
However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites. Does the employer's address need to be included in the advertisement?
Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed. Does the offered wage need to be included in the advertisements?
Can one advertisement be used for multiple positions?
NOTE: While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity. 30 Day Job Order Must the employer place a job order with the State Work force Agency (SWA) or will a job order placed on America's Job Bank (AJB) be sufficient?
It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient. NOTE: The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement. Must the required 30 day job order time frame end at least 30 days prior to filing?
While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing. Prevailing Wage Where and when does the employer obtain prevailing wage information?
The employer is required to include on the ETA Form 9089 the SWA provided information: the prevailing wage, the prevailing wage tracking number (if applicable), the SOC/O*NET(OES) code, the occupation title, the skill level, the wage source, the determination date, and the expiration date. NOTE: The SWA prevailing wage determination documentation is not submitted with the application, but it must be retained for a period of five years from the date of filing the application by the employer. What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?
Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?
Must the employer request a prevailing wage from a State Work force Agency (SWA) ifa Collective Bargaining Agreement exists or the employer is choosing to use a Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage?
The SWA is responsible for evaluating whether the wage source chosen by the employer is applicable and/or acceptable. If the employer's job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara O'Hara Service Contract Act (SCA), must the employer use the DBA or SCA?
Must the employer obtain a prevailing wage determination before the employer begins recruitment?
However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker. Why did the prevailing wage two tier skill level structure change to four levels?
Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level.' When does the four wage level provision go into effect?
Is the employer permitted to use a valid prevailing wage determination issued prior to March 8, 2005?
To apply under PERM, those employers using the OES must obtain a prevailing wage determination after March 8, 2005. NOTE: In all labor certification applications filed (postmarked or electronically dated) on or after March 8, 2005, the wage offer must be 100% of the prevailing wage determination and, if the OES is used to make the prevailing wage determination, the determination must be based on the four wage level provision. Is it permissible to use the same prevailing wage determination for more than one application?
Does a prevailing wage determination expire?
NOTE: To use a SWA prevailing wage determination, the employer must file its application or begin the recruitment required within the validity period specified by the SWA. When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?
What are the criteria for an acceptable employer-provided survey?
What options are available to an employer who disagrees with the State Work force Agency (S WA) prevailing wage determination?
Additionally, the employer may choose to file a new request for a wage determination or request review by the Certifying Officer. What additional documentation may the employer provide to the Certifying Officer when requesting a review of the prevailing wage?
The appeal stage of the process is not intended to serve as an avenue for the employer to submit new materials relating to a prevailing wage determination. Recruitment Report How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?
The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. NOTE: The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. workers resumes or applications, sorted by the lawful job related reasons the workers were rejected. Can business necessity be used to justify requirements which exceed the occupation's Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer's application?
While the job opportunity's requirements, as a rule, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceed the SVP. NOTE: Business necessity can be established by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner. Foreign Language Requirement Can the employer include a requirement for a foreign language?
The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employers customers, contractors, or employees who can not communicate effectively in English. Documentation necessary to establish such a business necessity is noted in § 656.17(h)(2). NOTE: Needing to communicate with co-workers or subordinates who can not effectively communicate in English and/or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement. How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the State Work force Agency (SWA) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer's obligation to inform the Department of Labor of these requirements?
Any requirements in addition to those listed in the summary will be considered not normal for the occupation and the employer should be prepared to provide proof of business necessity if requested by the Certifying Officer. These summary reports can be accessed at http://online.onetcenter.org. Even if the employer has informed the SWA of these requirements in a prevailing wage determination request, the employer must still inform the Department of Labor by correctly attesting on the Application for Permanent Employment Certification, ETA Form 9089/Questions H-12 or H-13. Additionally, if the employer has not accurately attested on ETA Form 9089 that there are requirements not normal to the occupation, the application will be denied whether proof of business necessity is available or not. Under what circumstances may the alien use experience gained with the employer as qualifying experience?
(2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position. NOTE: A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time. For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?
Does the alien beneficiary need to have a bachelor's or higher degree to qualify for a professional occupation?
However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employers willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form. Is the employer permitted to accept an equivalent foreign degree?
Is the employer permitted to accept alternative job experience/qualifications?
As discussed in the preamble to the final regulation, this is the standard developed by the Board of Alien Labor Certification Appeals in Matter of Francis Kellogg. NOTE: Even when the employer's alternative requirements are substantially equivalent, but the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the alien's qualifications unless the employer has indicated on the application that applicants with any suitable combination of education, training or experience are acceptable. COLLEGE AND UNIVERSITY TEACHERS-RECRUITMENT Are college and university teacher occupations included in Schedule A?
If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?
If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?
Are the recruitment provisions different for college and university teachers?
NOTE: The employer must support hiring of the alien by documenting that the alien was found to be more qualified than each U.S. worker who applied for the job opportunity. Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?
SCHEDULE A-QUALIFIED Physical Therapists, Professional Nurses, or Aliens of Exceptional Ability in the Performing Arts, Sciences or Arts, including College and University Teachers of Exceptional Ability What is Schedule A and who qualifies?
An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the aliens qualifications meet the provisions requirements. Is an application fora labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?
What form is used to file an application for a labor certification for Schedule A occupations?
Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?
If filing an application under Schedule A, must an employer provide notice of filing?
If an application for a Schedule A occupation is denied is the employer permItted to file for a labor certification for a physical therapIst or professional nurse under the basic process, § 656.17?
What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?
The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations. AUDITS Will there be certain responses to questIons on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?
The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the programs integrity. When, during an audit, is there a 90 day suspension of the audit?
Specifically; 'If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application.' REVOCATION What is revocation?
What are the criteria for revoking approved labor certifications?
Is there a time limitation for revocations?
INVALIDATION What is invalidation?
CERTIFYING OFFICER REVIEWAND BOARD OF ALIEN LABOR CERTIFICATION APPEALS (BALCA) Is the employer permitted to request a review by the Certifying Officer of a State Work force Agency (S WA) prevailing wage determination?
Is the employer permitted to request a review of the Certifying Officer's prevailing wage determination?
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