Basic Labor Certification Process Under PERM
Posted Mar 04, 2005
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We at The Law Office of Sheela Murthy have published many articles on the new labor certification regulation, known as the Permanent Electronic Review Management (PERM). As regular readers of MurthyDotCom and the MurthyBulletin know, the implementation date for PERM is March 28, 2005. PERM is a complex regulation, with many unanswered questions. In an effort to simplify the basic steps and procedures, providing our readers with an idea of what they may expect under the PERM system, we have prepared an outline of the key steps and requirements.
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Where Cases Will Be Processed
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Applications will be processed at either the Chicago or the Atlanta National Processing Center (NPC). The choice of the NPC depends upon the state where the work is located.
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Process Starts with Determining the Prevailing Wage
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Submit Prevailing Wage Determination (PWD) request to the State Workforce Agency (SWA) prior to filing the labor certification case to the Department of Labor (DOL).
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SWA will issue a PWD that will remain valid for no fewer then 90 days and no more 1 year from the determination date.
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The employer is required to meet 100% of the PWD made by the SWA. 
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The employer may submit an alternative wage survey subject to the approval of the SWA. 
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Pre-Advertisement Similar to the Reduction-in-Recruitment Method
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Differentiates between professional, advanced-degree professional, and nonprofessional positions for advertisement purposes.

• Professional (Advanced Degree with Experience) : 2 Sunday Ads or 1 Sunday Ad with 1 Journal, 1 Job Order (with SWA), and 3 Other Forms of Recruitment.
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• Professional : 2 Sunday Ads, 1 Job Order (with SWA), and 3 Other Forms of Recruitment.
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• Nonprofessional : 2 Sunday ads and 1 Job Order (with SWA).
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• If the largest newspaper in circulation does not have a Sunday edition, then the day that has the largest circulation. Generally applies to rural areas, not just suburbs.

(Professional - Defined in the regulation. When in doubt, use professional recruitment.)
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The other forms of recruitment are 3 out of the following ten :

• Job Fairs : Documented by brochures / newspaper ads where the employer is named as participant.
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• Employer Website : Documented by dated copies of pages.
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• Job Search Website : Documented by dated copies of pages. An Internet ad run in conjunction with the print ads may suffice.
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• On-Campus Recruitment : Documented by copies of notification issued by the placement office and dates interviews were conducted.
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• Trade / Professional Organization : Documented by tear-sheets.
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• Private Employment Firms : Documented sufficiently to demonstrate that recruitment was conducted, such as by a contract between the employer and the placement firm and copies of ads.
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• Employee Referral : Documented by dated copies of notices, specifying incentives.
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• Campus Placement Offices : Documented by copy of employer's notice of job opportunity provided to the campus placement office/s.
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• Local and Ethnic Newspapers : Documented by tear-sheets.
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• Radio and Television Ads : Documented by a copy of ad text and written confirmation from the radio or television station/s.
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Text of Advertisement Must :

• State the name of the employer.
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• Direct applicants to report or send resumes to the employer, as appropriate to the occupation.
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• Provide a description of the vacancy specific enough to apprise the U.S. worker of the job opportunity.
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• Indicate the geographic area of employment with enough specificity to apprise U.S. workers of travel requirements and where one would likely have to reside to perform the job.
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• Not contain a wage rate lower than the PW.
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• Not contain duties or requirements that exceed those listed on the PERM form.
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Procedural Points of Note

• Filing can be done via the Internet (preferred by the DOL) or by mail.
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• Per the DOL, decisions will be rendered within 45-60 days (if done via Internet, not a re-filed case, and involves no audit or supervised recruitment).
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• There is no waiting time for eligibility to re-file a denied case.
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• Documents supporting the filing, such as resumes, copies of the advertisements, and the results of the recruitment effort, do not get submitted with the application. These must be maintained in an audit file.
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• The employer is required to maintain an audit file for a period of 5 years after the submission of the PERM case.
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• The DOL reserves the right to review cases after certification and request audits. The DOL has the power to revoke approvals.
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• On-the-job experience with same employer is allowed for positions that are not "substantially comparable," meaning more then 50%, different from the original employment position.
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• PERM retains the concept of business necessity, which may be a factor for IT professionals.
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• Under PERM, the DOL determines employment with the same employer based upon the Federal Employment Identification Number of the company and not based on special company relationships.
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PERM Audit System

• Review of the labor certification or random selection may lead to an audit of the application.
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• An audit letter will request specific documentation that must be submitted by the employer.
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• Documentation must be submitted within 30 days of the audit letter.
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• One discretionary extension may be permitted.
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• Failure to timely respond will result in a denial of the labor certification process.
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• Substantial failure by the employer to provide required document- ation will result in a denial of the application and may result in a determination by the Certifying Officer that the employer be required to conduct supervised recruitment in future filings of labor certifi- cation cases for up to 2 years.
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• The DOL may elect to conduct supervised recruitment if they consider it necessary based on the employer's response to the audit.

PERM Sometimes Allows for Withdrawal of Submitted LC Cases & Re-Filing under PERM with Retention of the Priority Date

An employer that previously filed a labor certification (LC) case under the old method, may, if a job order has not been placed, re-file under PERM without the loss of the original filing (priority) date by:
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• submitting an application for an identical job opportunity, after complying with all of the filing and recruitment requirements of PERM
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• withdrawing the original application in accordance with DOL procedures
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• re-filing within 210 days of the withdrawal request
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• sending a copy of the original labor certification to the PERM Processing Center handling the case
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• understanding that "identical" means precisely identical
  (Job title, employer, alien, job description, job location, and job requirements must all be the same as those stated on the original labor certification for the case to be considered identical.)
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We hope this basic outline provides MurthyDotCom and MurthyBulletin readers with a helpful understanding of the structure and basic concepts under PERM. We at The Law Office of Sheela Murthy will continue to report on PERM as this new era in immigration law unfolds.