PERM : A First Look at Final Regulation
Posted Dec 27, 2004
As our MURTHYBULLETIN and MurthyDotCom readers know, the final PERM regulation was published in the Federal Register on Monday, December 27, 2004. The rule becomes effective on March 28, 2005, 90 days after publication. This means that all labor certifications filed on or after March 28, 2005 will be processed under PERM. All labor certifications filed prior to that date will be processed under current regulations for as long as it takes to complete such processing. The current labor certification regulations will be entirely replaced by the new PERM regulation. We have prepared an initial analysis of PERM below. In the coming weeks and months, we will provide more details and analysis on the various aspects of PERM.
Role of SWAs
The State Workforce Agencies (SWAs) will no longer receive the permanent labor certification applications as of March 28, 2005. The SWAs will, however, continue to play an important, but very limited, role in the labor certification process. Before a labor certification can be filed with the federal processing center, the employer must obtain a prevailing wage determination (PWD) from the SWA.
Each SWA will have its own form for the PWD submission. Each SWA will also indicate its validity period for the PWD. This validity period can be no less than 90 days and no more than 1 year. Employers may continue to use alternative wage surveys, but if the employer submits an alternative wage survey in dispute over a SWA's PWD, it will be considered a new PWD request, rather than supplemental information in support of the original PWD request. A priority date is NOT assigned at the PWD determination phase. An employer may request that the SWA send the PWD to a Certifying Officer (CO) for review and appeal it to the Board of Alien Labor Certification Appeals (BALCA) if not satisfied with the CO's determination. The employer may also submit a new PWD request. The employer must pay 100% of the prevailing wage. The DOL acknowledged that the new 4-level wage surveys must be addressed, but did not do so in this regulation.
SWAs will also take job orders for most occupations, which will be in effect for at least 30 days.
Filing a Labor Certification Under PERM
An employer wishing to sponsor a foreign national for an employment-based green card through the PERM labor certification process must submit an ETA Form 9089. This form can be filed electronically or by mail. If it is submitted electronically, the form is the ONLY DOCUMENT that will be submitted with the initial application. The PWD information will be placed onto the form by the employer based on the information the SWA has provided to the employer. Once the CO has electronically certified the application, the employer must sign it immediately in order for it to be valid. Applications submitted by mail must contain the original signature of the employer, the foreign national, and the attorney (and/or agent) when they are received by the application processing center. The USCIS will not process I-140 petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, foreign national, attorney, and/or agent.
The Department of Labor (DOL) may require the use of user identifiers, passwords, or personal identifier numbers (PINs). These will be issued to individuals and may only be used by these individuals. Any electronic transmissions submitted with a personal identifier will be presumed to be a submission by the individual assigned that personal identifier.
Non-electronically filed applications accepted for processing will be date-stamped. Electronically filed applications will be considered filed when submitted. These dates will be the priority dates for the labor certification applications.
Re-Filing a Non-PERM Case Under PERM
If a job order has not been placed for a pending, non-PERM labor certification application, the application may be re-filed under PERM without loss of the priority date under certain conditions. In order to re-file and maintain the priority date, the PERM application must be submitted pursuant to all PERM requirements and it must contain an identical job opportunity.
Withdrawal of Prior Case
In order to re-file under PERM and preserve a priority date from an earlier case, the original labor certification application must also be withdrawn. One significant issue is that filing an application and stating the employer's desire to use the original filing date will be deemed to be a withdrawal of the original application. This deemed withdrawal occurs even if the request to use the original filing date is denied.
If a non-PERM labor certification is withdrawn prior to filing a PERM application, preservation of the existing priority date requires that the PERM application must be submitted within 210 days of the withdrawal of the original application. The employer should be prepared to send a copy of the original application, including amendments, to the CO, if requested.
A job opportunity is identical if the employer, foreign national, job title, job location, job requirements, and job description are the same as those in the original application. The original application includes all accepted amendments up to the time that the application was withdrawn.
Schedule A Applications
Schedule A, Applications, which are pre-certified due to recognized shortages of registered nurses and physical therapists, will continue to be filed directly with the USCIS, using form I-140. These applications must include a completed ETA Form 9089, including a PWD and evidence that notice was given to the bargaining representative or that the notice was posted, as described below. Physical therapists must also provide a letter or statement, signed by an authorized state physical therapy licensing official in the state of intended employment, stating that the foreign national is qualified to take that state's written licensing exam for physical therapists. Nurses must provide documentation that the foreign national has received a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS); a full and unrestricted permanent license to practice nursing in the state of intended employment; or that the foreign national has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN). If the USCIS approves the application, the USCIS must notify the Chief, Division of Foreign Labor Certification. Schedule A Group II applicants will be addressed in a separate article on another date.
Employer Attestations
The employer must certify the conditions of employment under penalty of perjury. The conditions to be certified include matters pertaining to the prevailing wage. These certifications include: that the offered wage equals or exceeds the prevailing wage; that the wage the employer will pay to the foreign national will equal or exceed the prevailing wage that is applicable at the time that the foreign national begins work or is admitted to take up the certified employment; that the wage offered is not based on non-guaranteed commissions, bonuses, or other incentives; that the employer has sufficient funds to pay the offered wage; and that the employer will be able to place the foreign national on the payroll on or before the foreign national's proposed entry to the U.S.
Other certifications include: that the job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship; that the employer's job opportunity is not vacant because of a strike or labor dispute work stoppage or at issue in a labor dispute involving a work stoppage; that the job opportunity's terms, conditions, and occupational environment are not contrary to Federal, state, or local law; that the job opportunity has been and is clearly open to any U.S. worker; that the U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons; and that the job opportunity is for full-time, permanent employment.
Notice
Employers filing a labor certification must provide notice to the bargaining representative of those employees of the employer who are in the occupational classification and area of intended employment for which the labor certification is sought. This notice must be provided within 30 to 180 days before filing the labor certification application. If there is not a bargaining representative, the employer must post a notice at the facility or location of the proposed employment in a clearly visible and unobstructed location for at least 10 consecutive BUSINESS days. In addition, the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization. The notice must explain that it is being provided because the employer is filing a labor certification; that any person may provide documentary evidence regarding the application to the CO of the DOL; and the address of the CO. Most notices must also contain the information required for advertisements and must state the rate of pay.
Recruitment Efforts
Recruitment for labor certifications that do not include special handling, Schedule A occupations, or sheepherders must submit a job order to the SWA in the area of intended employment for 30 days. Special handling, Schedule A occupations, and sheepherders will be addressed in a separate article on MurthyDotCom at a later date. The employer must also run two Sunday advertisements in a newspaper of general circulation most appropriate to the occupation in the area of intended employment. If the job opportunity is located in a rural (not suburban) area that does not have a Sunday newspaper, the employer may use the edition with the widest circulation in the area of intended employment. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. These two steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification.
Content of the Ads
PERM sets out specifics for the content of the advertisements (ads). The ads must include the name of the employer and they must direct applicants to report or send resumes, as appropriate, to the employer. It is necessary for the ads to provide a description of the vacancy specific enough so the U.S. worker will understand the nature of the job opportunity. The ads must indicate the geographic area of employment with enough specificity to let the U.S. worker know of any travel requirements or potential relocation. The ads must not: contain a wage rate lower than the prevailing wage; contain any job duties that exceed those listed on the ETA Form 9089; and/or contain any wages or terms and conditions of employment that are less favorable than those offered to the foreign national.
Recruitment for Professional Positions
If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the 10 following recruitment efforts: recruitment at job fairs; recruitment on the employer's website; job search website other than the employer's site; on-campus recruiting; use of trade or professional organizations for recruitment; use of private employment firms; employee referral program with incentives; use of campus placement offices; use of local and ethnic newspapers; or use of radio and television advertisements. Only one of these efforts may be conducted solely within 30 days of filing the labor certification application. None may take place more than 180 days prior to filing the application. The DOL is maintaining a list of professional occupations, which were not included in the regulation. Professional occupations are those that typically require a bachelor's degree. Even if the employer is not requiring a bachelor's degree for the position, the professional recruitment must occur if the occupation is on the list. Examples of occupations on the current professional occupations list include: computer and information scientists, research; computer and information systems managers; accountants; computer programmers; computers software engineers; computer systems analysts; database administrators; network and computer system administrators; computer security specialists; network systems and data communication analysts; biomedical engineers; computer hardware engineers; electrical engineers; occupational therapists; sales engineers; and lawyers.
As with the non-PERM process, the foreign national and any attorney representing the employer or attorney is not permitted to conduct the interviewing or participate in the consideration process for U.S. workers applying for the offered position. The employer's representative who interviews or considers U.S. workers must be the person who normally interviews or considers applicants for the same or similar job opportunities with the employer for all positions, rather than solely for positions that are the subject of a labor certification. If the foreign national owns a part of the employer's business, is related to the employer, or if the employer is one of a small number of employees, the employer must be able to document that there is a bona fide job opportunity available to all U.S. workers.
A U.S. worker is considered able and qualified for the job if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. Such period is not defined, as the DOL feels that the period will vary by occupation and other factors.
Layoffs
If the employer has laid off employees in the geographic area of intended employment within 6 months of filing an application in the occupation of the layoffs, the employer must document that it has notified and considered all potentially qualified laid off U.S. workers. A layoff is any involuntary separation of one or more employees without cause or prejudice.
Recruitment Report
The employer must prepare and sign a recruitment report, which describes the recruitment steps undertaken and the results achieved. It must set forth the number of persons hired, the number of U.S. workers rejected, and the lawful job related reasons for such rejections. Though the names of the U.S. workers are not required to be included on the recruitment report, the CO may request the resumes of the rejected workers, sorted by the reasons that the workers were rejected.
Supervised Recruitment
Prior to approving the labor certification, the CO may require supervised recruitment for any position. The employer will place an ad in a newspaper of general circulation or in a professional, trade, or ethnic publication, and take any other measures required by the CO. If placed in a newspaper of general circulation, the advertisement must be published for 3 consecutive days, one of which must be a Sunday. If placed in a different publication, the ad must be published in the next available edition. The ad must be approved by the CO before it is published, and the CO will direct where and when to place the ad.
Within 30 days of being notified that supervised recruitment is required, the employer must draft the advertisement and submit it to the CO for review. The ad must direct applicants to send resumes or applications for the job to the CO for referral to the employer. The ad must also: include an identification number and address designated by the CO; describe the job opportunity; contain a wage rate at or above the prevailing wage rate; summarize the employer's minimum job requirements (which cannot exceed any of the requirements on the labor certification application form); offer training if it is normally provided by employers; and offer wages, terms, and conditions of employment that are no less favorable than those offered to the foreign national.
The employer must provide the CO with a signed recruitment report within 30 days of the CO's request for such a report. The report must identify each recruitment source by name and document that each recruitment source named was contacted. It must state the number of U.S. workers who responded to the employer's recruitment; state the names, addresses, and provide resumes of the U.S. workers who applied for the job opportunity, set out the number of workers interviewed, and the job title of the person who interviewed the workers; and explain the lawful, job-related reason(s) for not hiring each U.S. worker who applied.
Job Duties
It is still possible to use business necessity to justify certain job requirements. However, generally, job requirements should be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation, as shown in the O*Net Job Zones. A foreign language requirement may only be included if the person is in an occupation such as a translator or if the need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English.
Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity. If the beneficiary is already employed by the employer and only qualifies for the employment based on alternative experience requirements, the certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable. Experience with the employer generally cannot be included, unless it is experience in a position not substantially comparable to the position for which labor certification is being sought or the employer can demonstrate that it is no longer feasible to train the worker for the position. The DOL will not consider any education or training paid by the employer unless the employer offers similar training to U.S. workers.
For purposes of PERM, an employer is an entity with the same Federal Employer Identification Number (FEIN). A substantially comparable job is one that requires the performance of the same job duties more than 50 percent of the time.
Documentation Must Be Kept For 5 Years
Although employers are only required to submit the ETA Form 9089 if they file electronically, they must keep all records related to each labor certification application for five years. This documentation includes all documents related to the PWD, internal notices, documentation of recruitment efforts, and the recruitment report. If the CO chooses to audit the application, failure to provide the requested documents will result in a denial of the application and may result in up to 2 years of supervised recruitment.
BALCA
The Board of Alien Labor Certification Appeals (BALCA) can review denials and revocations if a request for review is sent to the CO within 30 days of the date of the determination; identifies the particular labor certification determination for which review is sought; sets forth the particular grounds for the request; and includes the final determination. The review request cannot include any additional evidence. BALCA may affirm the denial or revocation of the labor certification, or the PWD; direct the CO to grant the certification, overrule the revocation of the certification, or overrule the affirmation of the PWD; or direct that a hearing on the case be held.
CONCLUSION
We believe that this broad overview of the PERM process will be helpful to our MurthyBulletin and MurthyDotCom readers, many of whom have been eagerly awaiting PERM for over two years now. PERM represents a streamlined and hopefully faster process, as it revises the labor certification processing system, which is a fundamental part of the employer sponsored immigration process. We will continue to analyze details of the PERM process, as and when any additional information is released. We will continue to share our analysis and insights on PERM with you, as this new era unfolds.
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