DOL Issues Additional PERM FAQs
Posted May 20, 2005
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The U.S. Department of Labor (DOL) issued additional frequently asked questions (FAQs) regarding PERM on May 4, 2005. These FAQs, like those reported to MurthyDotCom and MurthyBulletin readers in March 2005, clarify issues related to the processing of Labor Certification applications under the PERM program. [See DOL Transition Watch : Clarity on PERM Issues (Mar 11, 2005) and DOL Answers More Questions on PERM (Mar 18, 2005). Other information about PERM is available in the PERM section of MurthyDotCom].
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Mandatory Maintenance of PERM Audit File The DOL confirmed that there is no one system that employers must use to save the supporting documentation for a PERM labor certification application. The DOL indicated that the employer has the burden of showing that the supporting documentation, commonly referred to as the audit file, is valid and defensible. This documentation must be retained by the employer for five years from the date of filing. The employer must understand that this is not a formality, but is necessary in order to respond to the DOL in the event the case is audited.
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Original Priority Date Retained for Re-Filed RIR Conversion Cases In an earlier effort to clear out some backlogs in labor certifications, the DOL previously permitted employers to request traditionally filed, regular labor certifications be converted to reduction in recruitment (RIR) cases. Eligibility for this conversion was limited to cases filed on or before August 3, 2001. These cases were known as RIR "conversion" cases. As relating to PERM, clarification was requested regarding the proper priority dates assigned to these cases if they were to be re-filed under PERM.
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The DOL confirmed that, if an employer successfully re-files a case under PERM that had been previously converted to an RIR case under the "old" system, the original case filing date is the priority date. That is, the priority date is the filing date of the original application under the traditional labor certification process, not the date that any later action was taken either to convert the case to RIR or to PERM. For example, if an employer filed a regular, traditional labor certification case on August 1, 2001, and then filed an RIR conversion for that case on December 13, 2001, the priority date is still August 1, 2001 for that case. If the same case is then successfully converted to PERM, the priority date for that case will still remain August 1, 2001.
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College and University Teachers Cannot Easily Convert to PERM Not all cases, however, can be re-filed under PERM. In addition to regular, traditional labor certification orders where recruitment has been initiated, an application cannot be re-filed under the PERM optional special recruiting provision for a college or university teacher selected under a competitive recruitment and selection process if that selection occurred more than 18 months prior.
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National Journal Ad for College and University Teachers The DOL indicated that the national professional journal advertisement, which must be in a print journal, must have been placed during the recruitment period prior to the selection of the college or university teacher.
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Prevailing Wage Determinations The DOL reminded employers that prevailing wage determinations must be obtained for college and university teachers and persons who file under the Schedule A (exempt from the labor certification process) provisions.
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We thank the DOL for the ongoing PERM clarifications. We at The Law Office of Sheela Murthy will continue to advise MurthyDotCom and MurthyBulletin readers of further PERM information and insights.
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