PERM FAQ: Business Day and Other Issues

The U.S. Department of Labor (DOL) released “Round 11,” PERM labor certification (PERM / LC) frequently asked questions, or FAQs. The new release is dated August 3, 2010. Included in this set of FAQs is the DOL’s definition of business day as well as information on employee referral program documentation.

Definition of Business Day

The PERM / LC process requires a sponsoring employer to post notification regarding the filing of the labor certification for ten consecutive business days. There is no regulatory definition of business day. This has led to recent concern due to PERM denials for postings that included less-widely-observed federal holidays. This matter was reported to MurthyDotCom and MurthyBulletin readers in our article, Murthy Success: PERM Posting & Meaning of Business Day, (23.Jul.2010). That article involved Columbus Day. We have also received reliable reports of denials of cases filed by other law firms due to postings that included Veterans Day.

The FAQ states that the DOL Office of Foreign Labor Certification (OFLC) interprets the term business day to mean Monday through Friday, except for Federal holidays. The DOL interprets the term based on its own “business day” and not as a subjective, case-by-case matter based upon the business practices of employers. Thus, it is important to be aware of all Federal holidays, including those not widely observed as days off by most employers.

The Federal holiday schedule is available online. It is important to note that Federal holidays generally roll over to Monday if they happen to fall on a weekend. On occasion, they will be observed on Friday; this will be the case for Christmas 2010. This issue also sometimes impacts employers that operate on weekends, such as hospitals, factories, retail and hospitality businesses, among others. As mentioned, the DOL uses a uniform definition of business day, based on a Monday-through-Friday model, and does not adapt for employers that operate on a six- or seven-day-per-week schedule.

One option for the employer could be to always post the position for a few extra days to avoid a potential problem resulting in the PERM denial and loss of the individual’s priority date as well as the employer having to undergo the entire recruitment process again, due to not having posted the position for the entire 10-day timeframe.

No Expedite Process for PERM

The OFLC also reiterated its long-standing policy of not expediting PERM / LCs. This was the existing practice even prior to PERM. The policy is clear, PERM / LCs will not be expedited regardless of the circumstances of the employer or worker.

Documentation Requirements for Employee Referral Program and Incentives

One of the forms of recruitment permitted as part of the PERM / LC process for professional occupations is an employee referral program with incentives. The DOL addressed the type of documentation sufficient to establish this form of recruitment. According to the DOL, the employer can document the use of such a program by providing dated copies of the notices or memoranda alerting employees to the existence of the program, and specifying the incentives. The employer also must document that the employees were aware of the particular opening for which the PERM / LC is sought. The notification to employees about the opening for the employee referral program will not be satisfied by the ten-day Notice of Filing, discussed above.

Conclusion

We at the Murthy Law Firm would like to thank the DOL for these clarifications. The Notice of Filing ten-day requirement will likely continue to be an issue for some PERM cases currently in the pipeline. Employers with questions about these requirements, or other PERM matters, should speak with a qualified, experienced immigration attorney.