Copland and Brenner

Table of Contents

1. PERM Regulations to Take Effect March 28

1. PERM Regulations to Take Effect March 28

   In January, we informed readers of the publication of long-awaited regulations overhauling the permanent labor certification application process, known as “PERM.” Now, the future is here: effective March 28, 2005, all labor certification applications are subject to the new regulations. In keeping our promise to update readers and offer a “report card” as to agency fulfillment of its mission under PERM, we focus our attention this month on its progress (and lack thereof) in that regard.

   So Far, So Bad

   Those familiar with the labor certification process have been vocal with their apprehensions as to whether the agency can fulfill its promise to “streamline processing and ensure the most expeditious processing of cases, using the resources available.” Some practitioners have suggested that the best advice to clients may be to go slow and allow the agency to work out initial bugs in the PERM system. Regrettably, such advice appears to be appropriate, particularly in cases where employers are not represented by knowledgeable attorneys.

   The Department of Labor (“DOL”) initially met negative expectations by posting an unacceptable version of new Form 9089 on its web site on the morning of March 28. DOL subsequently asked the American Immigration Lawyers Association to advise members that “If you downloaded ETA Form 9089 this morning, you do not have the correct version…[which lacked] the OMB approval number and expiration date in the upper left hand corner [and the] Department of Labor will not accept mailed-in applications missing the OMB approval number and expiration date.”

   On its web site, the DOL advised that “it is important that you thoroughly read the online help section, ‘Getting Started’ before you complete and submit labor certification applications. The online help provides step-by-step instructions for completing and submitting labor certification applications electronically.” However, in seeking the recommended reading via the “online help” link as late as March 31, we were afforded only a page published March 7, stating that its “User Guide” is “under development.”

   Even worse, as of March 31 various DOL web sites provide outdated information regarding the labor certification process. A search on the A – Z Index on the main DOL site, www.dol.gov, includes no entry for “PERM” and continues to direct those searching for “foreign labor certification” information to the Employment and Training Administration web site. In turn, the ETA site link continues to link readers to (http://workforcesecurity.doleta.gov/foreign/perm.asp) for information on the labor certification process. There, pre-PERM information is reflected for both the “normal” and reduction in recruitment (“RIR”) alternatives, which are no longer available. In addition, the link to 20 CFR 656 directs the reader not to the new regulations, but to the old regulations defunct as of March 27.

   There is no way for the average employer to know that the pre-PERM information still set forth on the DOL web site is not valid for new filings. For this unconscionable oversight, the DOL earns an “F” on its report card for clear failure in carrying out its responsibilities to the public.

   Just the FAQ’s, Ma’am

   The DOL’s PERM web site is located at http://www.plc.doleta.gov/. There, users are greeted with the following message: “You are now entering a computer system generated for and on the behalf of the United States government. Unauthorized access or use of this system for any purpose other than official government business is punishable by a fine, imprisonment, or both. Your use of the system may be monitored. (18 U.S. Code 1030)” For those brave enough to venture into the web site, we note that a user clicking on the link to “Permanent” under “Hiring Foreign Workers” will be kicked back to the outdated information for traditional and RIR filings that earns the main DOL web site a failing grade.

   The good news is that, since our January report, the DOL has issued various communiqués regarding its implementation of PERM, including frequently asked questions (FAQs) which are posted on its web site. In the 23 pages devoted to PERM, we note the following items:

   Prevailing Wage Determination (“PWD”) : The employer must offer a wage that is at least 100% of the prevailing wage. A PWD must be obtained from the State Workforce Agency (“SWA”) having jurisdiction over the area of intended employment, prior to filing any labor certification application, using the form provided by that SWA. With minimal exceptions, a wage determination issued prior to March 8, 2005 cannot be used for a PERM filing. A PWD under PERM will be valid for a period of 90 to 365 days from the determination date. The validity period will be based upon the wage source used.

   After receiving a SWA wage determination, the employer must begin the recruitment period or file the labor certification application within the stated validity period. An employer may request that the SWA use an employer-provided survey, as long as it meets applicable regulatory provisions. If an employer disagrees with the PWD, it has one opportunity to provide supplemental information. If the employer still disagrees, it may file a new request for a PWD or request review by the Certifying Officer.

   The PWD must be retained for a period of five years from the date the employer files the labor certification application.
   Recruitment : Recruitment requirements are different for professional and non-professional occupations, with additional steps required for professional occupations (set forth in Appendix A to the preamble of the final PERM regulation). In any case, a job order, obtained through the SWA, is required. Steps cannot be duplicated, nor can one step be used to satisfy two requirements, except where newspaper advertisements generate posting on the paper’s web site (in such cases, the web posting can count as use of a web site other than the employer’s). Generally, all recruitment must be conducted at least 30 days, but no more than 180 days, prior to filing. However, one of the three additional steps required for professional positions may take place within 30 days of filing.

   Exceptions apply to college and university teachers and aliens to be employed in professional team sports. Special rules also apply to Schedule A (shortage) occupations, which are not filed with the DOL but directly with U.S. Citizenship and Immigration Services and must include all supporting documentation upon filing .

   In every case, including Schedule A applications and faculty cases, a notice of filing must be posted at the place of employment. The notice must include the specific wage being offered and be posted for ten consecutive business days. The last day of posting must fall at least 30 days prior to filing the labor certification application. For faculty positions, the notice of filing may be posted after the selection process has been completed, and the application may be filed up to 18 months thereafter. However, the posting in faculty cases must still take place between 30 and 180 days prior to filing the application.

   Recruitment efforts must apprise applicants of the job opportunity but need not enumerate every job duty, job requirement and condition of employment. A generic add with few details may generate a large volume of applicants, all of whom must be addressed (though not by name) in the recruitment report. A job identification code may be used to assist the employer in tracking applicants for the job opportunity.

   Filing : In a liaison meeting with AILA, the DOL advised that traditional and RIR cases postmarked by March 27, 2005 would be accepted under the old rules. This will apply regardless of receipt date by the agency. Any labor certification application postmarked or sent via courier after March 27, 2005 will be rejected and the employer must refile under the PERM rules. (posted on AILA InfoNet as Doc. No 05032266, March 22, 2005).

   Before filing under PERM, an employer must register as a user and establish an account on the PERM web site. Employers that frequently file labor certification applications may establish DOL files so that information common to any application will be entered automatically. An employer may save a draft application online or submit it to one of the National Processing Centers. Nationwide, there will be two such centers – one in Atlanta, Georgia and one in Chicago, Illinois. While only the new labor certification application form, ETA 9089, will be filed, the employer must retain the completed form and all required supporting documentation in the event the application is selected for audit or otherwise requested by the Certifying Officer. Once certified, the application will be mailed to the employer; the employer, alien and preparer (attorney or agent), if applicable, who must immediately sign it upon receipt. In any case, all supporting documentation must be retained by the employer for five years after filing the labor certification application.

   Post-filing action – Certification, Denial Audit, Suspension, Revocation, Invalidation : Certifying Officers will either certify or deny applications. The interim step of issuing a Notice of Findings under prior rules has been eliminated. In problem cases under PERM, interim steps may involve an audit or suspension of processing. The DOL advises that it will not address questions regarding audit criteria, and that such criteria were purposely omitted from the regulations in order to retain flexibility to change audit criteria. The agency’s position is that making the audit process predictable would negatively affect the program’s integrity.

   Where possible fraud or willful misrepresentation is discovered before a final determination, processing will be suspended and the case referred to the Department of Homeland Security (“DHS”) for investigation. If 90 days pass without filing of a criminal indictment or information, and no notice has been received from DHS, the DOL’s Office of Inspector General or other appropriate authority that an investigation is being conducted, processing of the application may continue.
   In cases where a prior grant of labor certification is determined to have been unjustified, certification may be revoked by the Certifying Officer. Revocation may result from unintentional or willful conduct of the employer, fraud or willful misrepresentation, obvious error, or matters associated with the labor certification process. There is no time limit imposed on Certifying Officers for revocation of a previously approved labor certification application.

   Consular officers in the Department of State as well as DHS officers also have authority to overturn a previous grant of labor certification by invalidation . Invalidation may follow a determination made pursuant to agency procedures, or by a court, that willful misrepresentation of a material fact exists involving the labor certification application.

   Refiling : An employer may refile a labor certification application under PERM and keep the original priority date in some circumstances, but only for an identical application. To be deemed “identical,” the employer (including address), alien, job title, job location, job requirements and job description must be identical in both the original and refiled applications . It is not necessary that the prevailing wage be identical, as that information may well have changed since the original filing.

   In cases where a job order has been placed by the SWA on the original filing, an employer is prohibited from refiling and retaining the original priority date. However, if an employer placed a job order as a recruitment step in an RIR case, that job order is not considered to have been placed by the SWA and the employer is permitted to refile. Refiling requires withdrawal of the original filing, indicated by a “yes” response to Item A-1 on Form ETA 9089.