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1. DOL Issues Long-Awaited PERM Regulations

1. DOL Issues Long-Awaited PERM Regulations

   By final rule published in the Federal Register on December 27, 2004, the U.S. Department of Labor (“DOL”) finally issued the labor certification application regulations it has been promising for several years. The Supplementary Information to the new rule notes that “[t]he process for obtaining a permanent labor certification has been criticized as being complicated, time consuming, and requiring the expenditure of considerable resources by employers, State Workforce Agencies and the Federal government.” The same might be said of the final rule, the path to which was itself tortuous and plagued by delay. The rule was finalized more than 2½ years after publication of a proposed rule on May 6, 2002. In turn, the proposed rule was issued after years of repeated assurances by the DOL that publication was imminent.

   The rule is effective March 28, 2005 and applies to labor certification applications filed on or after that date. Applications filed before March 28, 2005 “will continue to be processed and governed by the current regulation, except to the extent an employer seeks to withdraw an existing application and refile it in accordance with the terms of this final rule.” The DOL believes that the new system will “streamline processing and ensure the most expeditious processing of cases, using the resources available.”

   Background: The Statute

   As noted in the Supplementary Information to the new rule, Section 212(a)(5) of the Immigration and Nationality Act (“INA”) requires that “[b]efore the Department of Homeland Security (DHS) may approve petition requests and the Department of State (DOS) may issue visas and admit certain immigrant aliens to work permanently in the United States, the Secretary of Labor must certify to the Secretary of State and to the Secretary of Homeland Security: (a) There are not sufficient United States workers who are able, willing, qualified, and available at the time of the application for a visa and admission into the United States and at the place where the alien is to perform the work; and (b) The employment of the alien will not adversely affect the wages and working conditions of similarly employed United States workers.”

   “If the Secretary of Labor, through the Employment and Training Administration (ETA), determines there are no able, willing, qualified, and available U.S. workers and employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers, DOL so certifies to the Department of Homeland Security and to the Department of State by issuing a permanent alien labor certification.
   If DOL can not make both of the above findings, the application for permanent alien employment certification is denied.”

   The Regulations

   The final rule, like other regulations, is the involved agency’s interpretation of a statute. 20 CFR Section 656 represents the DOL interpretation of INA Section 212(a)(5), and sets forth the specific responsibilities of an employer seeking to permanently employ an alien in the U.S.A. The final rule replaces in its entirety the existing regulations at 20 CFR Section 656. While the rule contains some appealing changes, there are others that cause concern among the immigration bar and employers who need to use labor certification as the means of filling a particular job opportunity with a qualified (foreign) worker. Below, we discuss some of the most important changes.

   Prevailing Wage: The new rule specifies that an employer must obtain a prevailing wage determination from a State Workforce Agency before filing a labor certification application. The employer must submit the appropriate State Workforce Agency (“SWA”) form to the SWA that will provide the prevailing wage information. There is no time frame within which the SWA must provide the prevailing wage information. The wages offered for the job opportunity must be 100 percent of the prevailing wage. This follows enactment of the Consolidated Appropriations Act of 2005, signed into law on December 8, 2004. Four wage levels, based upon experience, education and the level of supervision involved, will be required of government wage surveys. Previously, an employer could be in compliance by offering wages of at least 95% of the prevailing wage, and many government surveys were broken down into only two wage levels.

   Recruitment: The sponsoring employer must conduct recruitment prior to filing the labor certification application, akin to the current “reduction in recruitment” (“RIR”) option. For any job, an employer must place a job order with the SWA and two print newspaper advertisements on two different Sundays. If a professional journal is appropriate for the job opportunity, the employer may choose to use a journal ad in lieu of one Sunday newspaper print ad. If the application is for a professional position, three additional steps from a list of ten alternatives (depending upon the type of job opportunity) are required of the employer. The job order and print ads must be placed more than 30 days but less than 180 days before filing the application.

   Exception to Recruitment Requirements: With the new rule, DOL states that “[w]e believe it would be inappropriate to make changes to Schedule A in this final rule. However, it may be productive to consider whether we could create a more flexible Schedule A in the future.” Therefore, no recruitment is required for Schedule A occupations and one Form 9089 (see below) will be filed directly with USCIS along with Form I-140 and supporting documents. The posting requirement, however, will continue to apply to all Schedule A occupations. For nurses, a full and unrestricted (permanent) license, proof of having passed the NCLEX-RN exam, or a CGFNS Certificate will be required (proof of having passed the CGFNS examination will no longer suffice). Special recruitment procedures apply to college and university teachers under 20 CFR Section 656.18, who must be deemed “more qualified” than any U.S. worker who applied for the job.

   Forms: The current forms, ETA 750A and 750B, will no longer be utilized commencing March 28. Instead, a new form – ETA Form 9089 – will be required. The form “has been designed to be completed in a web-based environment and submitted electronically or to be completed by hand and submitted by mail.” The form “will contain additional ‘blocks’ to be marked by the employer to acknowledge that the submission is being made electronically and that information contained in the application is true and correct.” The form will be available online at the DOL web site, at www.workforcesecurity.doletalgov/foreign/. That web site will include “detailed instructions, prompts, and checks” to assist in completing the form. For employers filing frequent labor certification applications, secure files containing information common to all applications may be maintained on the web site. For attorneys filing electronically on behalf of an employer, no G-28 (Notice of Appearance) is required. Only one Form 9089 will be filed, rather than two as has long been required under the current system.

   Exception to new form: “Employers filing applications on behalf of aliens to be employed in professional team sports will continue to use the existing special procedures and will continue to file their applications using [Form ETA 750].”

   Filing: The new rule provides that “a complete application will consist of a single form” - the new labor certification application form, ETA 9089. No supporting documentation will be submitted by the employer along with the form. However, the employer “will be expected to maintain the supporting documentation specified in the regulations. The employer will be required to provide the supporting documentation in the event its application is selected for audit and as otherwise requested by a Certifying Officer.” Filing may be accomplished by mail or online at the same DOL web site where Form 9089 is accessed, at www.workforcesecurity.doletalgov/foreign/. However, “[a]pplications submitted by mail will not be processed as timely as those filed electronically.”

   Post-filing action by DOL: Whether filed by mail or online, agency processing of a labor certification application will largely be automated: “a computer system will review the application based upon various selection criteria that will allow problematic applications to be identified for audit. Additionally, as a quality control measure, some applications will be randomly selected for audit without regard to the results of the computer analysis. DOL has incorporated identifiers into the processing system, which are used to select cases for audit based upon program requirements. In some instances, DOL will be confirming specific information with employers.” No civil money penalties or other penalties are imposed by the new rule, but the DOL is apparently not precluding them in the future: “We have concluded that before making such fundamental changes in the program we should publish proposed penalties for notice and comment in another [proposed rule].”

   Problem Cases: If an application is selected for audit, the employer will be notified and required to submit documentation verifying the information stated in or attested to on the application. If the employer fails to submit a timely response, the application will be denied. If the employer submits an incomplete or deficient response, or if the documentation is inconsistent with the application form filed, it will be denied. In any case, the Certifying Officer “will have the authority to request additional information before making a final determination.” The Certifying Officer “may also order supervised recruitment for the employer’s job opportunity, such as where questions arise regarding the adequacy of the employer’s test of the labor market.” If denied, “an employer will be able to seek administrative-judicial review of a denial by the Board of Alien Labor Certification Appeals.”

   Certification by DOL: For a problem case, “[1]f the audit documentation is complete and consistent with the employer’s statements and attestations contained in the application, and not deficient in any material respect, the application will be certified [and] the employer will be notified.” If an application is not selected for audit and satisfies all other reviews, it will be certified and returned to the employer. The DOL “anticipate[s] an electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days” of filing.
   
   Employer Action Following Certification: After certification is issued by the DOL, Form 9089 must “immediately” be printed and signed by the employer. The original must be filed with U.S. Citizenship and Immigration Services in support of the immigrant petition for alien worker (Form I-140). A copy of the signed form must be maintained in the employer’s files. If the beneficiary is present in the U.S.A. and an immigrant visa number is available in the alien’s classification, his or her adjustment of status application (and those for any eligible derivative family members) may be filed along with applications for employment authorization and advance parole, if appropriate given the facts of the case. For an alien overseas, immigrant visa processing at a U.S. consulate would be required following any approval of Form I-140.

   Refiling: If an employer seeks to gain any advantage that may be available by refiling, it may withdraw a pending labor certification application and refile for the identical job opportunity. Doing so will retain the original priority date, but only if the application is refiled before a job order has been placed by DOL.

   Conclusion

   The new rule and Supplementary Information comprise a whopping 314 pages. The devil is in the details. Given its length, there are many finer points contained in the rule, which we will discuss in future editions. Given its newness, there are many questions that can be answered only as case law under the new regulations develops.