On December 27, 2004, the USDOL promulgated the new PERM (Program Electronic Review Management) process for Permanent Labor Certifications. The effective date of the PERM regulation is March 28, 2005. After that date, ALL permanent labor certification applications will have to be filed through the PERM process.
The PERM regulation totaled over 320 pages in electronic format. Rather than reproduce that huge file (over 3 MB) here, this article is a summary of the pertinent parts of the regulation that tend to impact most Labor Certification cases. Since this article is an overview, it is not intended to explore the nuances and twists of intricate Labor Certification processes and strategy. For specific issues that may impact on your case, you are well advised to consult an immigration professional (such as myself, of course!)
In order to be brief, I have summarized the following key points. Where applicable, I have begun each paragraph with the word “Change” or “Same” in order to compare and contrast the prior Labor Certification rules with the new PERM regulation.
APPLICATION FORM: CHANGE:
The new form, is ETA 9089, which replaces the current ETA 750, Parts A and B (except for professional athletes). You may be able to find the form at http://workforcesecurity.doleta.gov/foreign/form.asp
a. Prevailing wages: CHANGE: Long a source of contention, the December 8, 2004 H-1b Reform Act inserted two additional wage levels between the current “entry level” and “fully competent” wage on the USDOL Online Wage Library website. These four levels are available not only for H-1b applications, but also for Labor Certifications. The four levels are supposed to be commensurate with experience, education, and level of supervision. For details on how the new wage levels are calculated, please see my article “the H-1b Visa Reform Act of 2004″. Any alternate survey used by an employer has to comply with DOL requirements for statistical validity.
However, all applications filed under PERM will have to first obtain a Prevailing Wage Determination from the SESA (for purposes of this article, I use the term “SESA” to refer to the department of the State Employment Services Agency in your state that handles processing of permanent and temporary foreign labor certifications.) These wage determinations will be valid for at least 90 days and no more than one year from the date of issuance. An employer can appeal the wage determination. Supplemental information to contest the prevailing wage can be submitted only once; the employer cannot submit additional supplemental information later. The SESA’s re-determination can be appealed to the Certifying Officer (CO) in every DOL region, and thereafter to the BALCA (Board of Labor Certification Appeals). There are no timeframes or deadlines for either the CO or BALCA to arrive at a determination of the prevailing wage challenge.
b. Bonuses and other discretionary benefits: SAME: cannot be added to the wage / salary to meet the prevailing wage, unless these are guaranteed, and paid on a regular basis (rather unrealistic)
c. When the prevailing wage has to be paid: SAME: only on the approval of the permanent residency or the alien’s admission to the United States to begin the specified employment.
d. 100% of prevailing wage must be paid: CHANGE: the 5% leeway is no longer permitted. The employer must be prepared to pay 100% of the SESA prevailing wage for the position.
RECRUITMENT PROCESS AND REQUIREMENTS:
a. Offered wage required in internal posting, but not in advertising. SAME
b. Prevailing wage must be obtained from SESA (above) prior to filing under PERM: CHANGE
c. Reduction-in-Recruitment type processes permitted under PERM: SOME CHANGES. Under PERM, RIR-type processes (see my article “The Path Well Traveled – Immigration Through Employment” http://www.immigration-america.com/employment.html ) continue, but are enhanced. Employers must now provide increased evidence of recruitment efforts through other sources, summarized as follows:
Internal posting: Continues – one posting must be placed in a conspicuous place for at least 10 consecutive business days, at least 30 days before filing, but not more than 180 days before filing. If there is a bargaining unit at the workplace for the occupation for which certification is sought, the representative of such bargaining unit must be notified of the opening.
In-House media: CHANGE. Mandates postings on internal websites, intranets, and newsletters (which are not accessible to the general public or non-employees) if job openings for the occupation are usually posted in such places.
Job Order with the SESA: CHANGE from RIR: The employer has to place a job order for a minimum of 30 days. This will allow the SESA to place the opening on nationwide internet sites, possibly including “Americas’ Job Bank”. Employers will need to contact their respective SESA’s to find out how they need to place these required job orders. In Ohio, the SESA has already instructed that employers place the job orders directly with the state office of employment (in Ohio, that is the Ohio Department of Job and Family Services) and not through the SESA.
Newspaper Advertisements: CHANGE. Two ads must be placed on Sundays, at least 180 days prior to filing, but not less than 30 days prior to filing. The ads can run on consecutive Sundays (no 30-day gap required as in the past). Applicants can be directed to a P.O. Box. PERM permits one professional ad for a position requiring an advanced degree and experience, but another regular newspaper Sunday ad must also be placed. If there is no Sunday paper, a weekday paper with the largest general circulation in that geographic area can be used. Happily, a website operated by the publication that lists the job opening also qualifies as a web posting, and another recruitment source.
If the position is classified as “professional” (the PERM regulation lists what constitutes professional at Appendix “A” – most occupations requiring at least a BS degree are considered professional), then the PERM regulations require additional recruitment. The employer must show that it has advertised for workers for the position in at least THREE out of the following ten recruitment sources:
Job fairs; Employer’s website; job search website (example: monster.com, etc.) on-campus recruitment; job opening notice at campus placement offices (for jobs requiring no experience); trade or professional organizations; employment firms (recruiters); employee referral programs; local or ethnic newspapers, if appropriate; and TV and radio ads.
The ETA 9089 requires the dates that the employer undertook each form of recruitment. Use judgment when conducting recruitment to demonstrate “good faith” in compliance with the philosophy of PERM and the USDOL, that is, to protect the US worker and give all US workers a fair opportunity to compete for the position. The various recruitment efforts listed above can be concurrent, they do not have to be sequential or in any particular order.
APPLICATION TO DOL:
As stated above, the application is filed by the employer on form ETA 9089. In a major change from the prior process, the supporting information does not need to be filed with the form. The form can be filled in and filed either by mail or electronically. There are two PERM centers, in Chicago and Atlanta. See www.plc.doleta.gov for details.
The supporting information includes the prevailing wage determination discussed above, copies of the advertisements, posting, verification of other sources of recruitment, as listed above. In addition, the employer will also have to prepare a recruitment summary listing the legal, job-related reasons for rejection of any applicants. Such supporting documentation must be retained be the employer for at least five years from the date the ETA9089 is filed. DOL can ask for this supporting documentation when reviewing a case or in the event that a case is audited, so it is critical that employers take this obligation seriously.
If an employer decides to withdraw an application, there is no need to wait the currently-required 180 days before re-filing the application. However, the employer will still have to comply with the requirements for recruitment.
CONVERSION OF “REGULAR” or “RIR” PENDING CASES TO PERM:
For employers who have been waiting long periods while cases languish at SESA’s there is a possibility of conversion to a new PERM case. However, all the recruitment under PERM must be satisfied. This means that in most cases, unless the case was filed in the last couple of months with the SESA, all the recruitment and advertising will have to be conducted again, a significant expense of time and money. Only cases for the “identical job opportunity” can be refiled under PERM – i.e., same employer, job title, alien, job description and minimum requirements. PERM requires that the re-filing be done within 210 days of the withdrawal of the pending labor certification. Only if the DOL considers the re-filing as one for the “identical job opportunity” will the DOL retain the priority date of the earlier application. This has a serious consequence, as discussed below.
Although the DOL refers to an application for the same job opening as “conversion”, this is not really the case from a practical standpoint: The employer has to conduct the necessary PERM recruitment, and the application, as noted above, has to be for the “identical job opportunity”. So what happens if the DOL does not consider the job as the “identical job opportunity”? The employer will lose the old priority date. That is a serious problem for employees who may be nearing the end of their H-1b status. Under the AC-21 (American Competitiveness in the 21st Century Act), employees can obtain year-by year extensions of their H-1b status over the 6-year maximum, provided their Labor Certification or I-140 petition has been pending for over one year. (See my article on the AC-21, http://www.immigration-america.com/acomp.html ) If the priority date is lost, the employer cannot meet the one-year pendency requirement, and therefore cannot apply for a seventh-year or subsequent H-1b. That could be a critical problem for both the employer and the employee.
Thankfully, business necessity remains available under PERM. To demonstrate business necessity, an employer will have to demonstrate that the special job requirements are reasonably related to the employer’s business and are essential to perform the job duties of the occupation for which the Labor Certification is sought. Examples of special requirements include a specific skills in a foreign language, expertise with a certain software, and the like. If special requirements are included on the form ETA 9089, then the employer will have to document the need for those requirements and retain such documentation per the PERM regulations.
PRIOR EXPERIENCE WITH EMPLOYER:
The general rule that prior experience with the same employer cannot be used still stands. In addition, the PERM rule also asks whether the employer has paid for any of the alien employee’s on-the-job training, certification, or other education “necessary to satisfy the employer’s job requirements for the position.” It seems that the DOL will also now disallow requirements that are satisfied by employer-paid or reimbursed educational expenses while the alien is on the job. At the very least, the DOL may require that the employer provide similar employer-paid training to US workers who do not have those skills at the time they applied for the position.
However, the DOL will allow experience with an affiliated or related employer as long as the two employers (the employer where the experience was gained and the petitioning employer) have two different Federal Employer Identification Numbers (FEIN).
SPECIAL HANDLING FOR COLLEGE AND UNIVERSITY PROFESSORS:
In contrast with “regular” labor certification applications, institutions of higher education are permitted to choose the best applicant for the position, rather than the minimally qualified applicant. Special Handling continues as before, and the petitioning institution will have to show that the alien was more qualified than any US worker who applied for the position.
SCHEDULE A APPLICATIONS:
Applications for “shortage” occupations such as professional nurses, physical therapists, aliens of exceptional ability in the sciences and arts, including performing artists of exceptional ability will be pre-certified, meaning that their Labor Certification application can be filed concurrently with their I-140 petitions for Immigrant Worker with the USCIS (former INS). The employer or the petitioner must still obtain the Prevailing Wage Determination from the SESA and include it with their Form 9089 and I-140 petition to the USCIS.
IF THE PERM APPLICATION IS NOT CERTIFIED:
What happens if the Certifying Officer at a PERM center does not certify the application? What if the application is audited and the CO decides that the employer did not conduct recruitment in a satisfactory manner?
The DOL can instruct the employer to conduct supervised recruitment. In this case, the process is similar to the current “regular” labor certification recruitment process which is initiated and supervised by the SESA’s: Three print ads or one journal ad, followed by submission of resumes to the employer, concluding with a recruitment report to the PERM center within 30days.
The employer can appeal a denial of a PERM application can be appealed to the BALCA, but there is no provision for the BALCA to remand a case to the CO for further processing or review; therefore the BALCA decision is final.
The DOL retains unlimited authority to revoke a case where it feels that approval was “not justified”. Obviously, this is a very nebulous standard.
CURRENT APPLICATIONS FOR RIR OR REGULAR PROCESSING:
Applications already filed or filed before March 28, 2005, will be sent by the respective SESA’s to the “Backlog Reduction Centers”, which are in Philadelphia, Pennsylvania and Dallas, Texas to continue processing. These Backlog Reduction Centers have been funded for only two years, so either the backlog will be addressed in that time, or the funding will have to continue, or some other mechanism will have to be devised to resolve these pending cases. All new PERM applications will have to be filed with the PERM processing centers in Chicago, Illinois and Atlanta, Georgia.
There are many issues that are beyond the scope of this article, since, as I noted above, I wanted to keep this a summary of the points that I believe will affect most employers and employees. Again, this is not intended to be legal advice about your case. Labor Certification was always a complex undertaking, and under PERM, promises to be even more complex. Therefore, please consult an immigration professional before taking any action.
Copyright, Farhad Sethna, Attorney, 2005