Dec 31, 2004 - PERM Regulations - A Summary

           As you know, the PERM regulations were published in the Federal Register on Monday, December 27, 2004.  They will be implemented 90 days thereafter, on March 28, 2005.  This means that after March 28, 2005, the only way to file an application for Alien Employment Certification will be through the PERM procedures.  As a result, the filing of  “Labor Certification Applications” will be forever changed.

            What does this mean to you?  Nankin & Verma PLLC has summarized the 300+ page regulations for your review below.  For specific questions, please call our office, and we would be happy to discuss the regulations with you.

Filing – Electronic or by Mail:

             Applications will no longer be filed with the State Workforce Agencies (SWAs).  Instead, they will be filed either electronically on the Department of Labor’s ETA website, or by mail to the appropriate centralized processing center.  A new form will be used for filing: ETA 9089.

             The electronic filing method will closely mirror the current LCA system for H-1B petitions, in that the certified ETA 9089 must be signed by the employer upon certification, and a copy must be maintained in the employer’s files.  Additionally, the original signed ETA 9089 must accompany the I-140 Petition for Alien Worker when it is filed with the Citizenship and Immigration Service.  For electronic filing cases, the priority date will be assigned as of the date the electronic submission is accepted for filing.

             When filing by mail, the employer’s original signature must be on the ETA 9089.  The applications will be mailed directly to the appropriate centralized processing center, and a priority date will be assigned as of the date of receipt.

             No supporting documentation will be filed with the ETA 9089 submission whether the application is filed electronically or by mail.  The supporting documentation must be maintained by the employer in case a random audit is conducted on that case, or the DOL Certifying Officer requests certain documentation at his/her discretion.  Supporting documentation will have to be kept on file for five (5) years from the date of filing.

Prevailing Wages – 100% Requirement:

             Prevailing wage determinations by the SWAs will be required prior to filing the case.  The SWAs will have specific prevailing wage forms to make these requests, and the forms will be state-specific.  The prevailing wage determination obtained by the SWAs should also be retained as part of the supporting documentation kept on file by the employer in the event of an audit.

            Whereas previously, employers could agree to pay 95% of the prevailing wage in most cases, the new H-1B/L-1 regulations (the Consolidated Appropriations Act of 2005) passed earlier this year, requires 100% payment of the prevailing wage.  Previously, there were two (2) skill levels, now there will be four (4) levels of wages commensurate with experience, education, and the level of supervision required in performing the job duties.  A formula has been provided by the DOL with regard to calculating the four (4) levels of wages.

Mandated Prefiling Recruitment:

            Employers will be required to engage in specific recruitment activities similar to the current Reduction in Recruitment filing procedures:

            Posting Notice

            The employer must post a Notice of Job Availability for at least ten (10) consecutive business days between 180 and 30 days prior to filing the ETA 9089.  The Notice must contain the offered salary, but may list a range, as long as the lower level of the range reflects the prevailing wage or higher.  Additionally, if the employer normally utilizes in-house media, whether electronic or printed, to recruit for similar positions, the employer will be required to so the same for cases being filed with the DOL.

            Newspaper Advertisements

            The employer will be required to place two (2) advertisements, on two (2) separate Sundays in a newspaper of general circulation in the area of intended employment.  The ads must be placed more then 30 and less than 180 days prior to filing the ETA 9089, and may be placed on two (2) consecutive Sundays.

             The ad must be placed under the proper heading or keyword, and must list the name of the employer, the geographic area of intended employment if a job site is unclear, and a description of the vacancy specific enough to apprise U.S. workers of the job opportunity.  The employer need not list its physical address, and may designate a central office or post office box for receipt of resumes.  The ad must direct applicants to send resumes or report to the employer, as appropriate.  Additionally, the ad does not need to include the salary offered or a detailed listing of the job description and requirements.  Finally, the employer may include minimum education and experience requirements or specific job duties in the ad as long as they are also listed on ETA 9089.

             If the position requires an advanced degree and experience, an ad in a professional journal may be used in lieu of one (1) Sunday ad.

             Professional Jobs

             For positions that are considered “professional” in nature, or for which the attainment of a bachelor’s degree or higher is a usual education requirement, the employer must engage in three (3) additional recruitment steps.  The employer must choose from the following list:

·                     Job Fairs

·                     Employer’s Website

·                     Job Search Website Other than Employer’s

·                     On-Campus Recruiting

·                     Trade or Professional Organizations

·                     Private Employment Firms

·                     An Employee Referral Program (only if it includes identifiable incentives)

·                     A Notice of the Job Opening at a Campus Placement Office (if the position requires a degree, but no experience)

·                     Local and Ethnic Newspapers (if appropriate to the job opportunity)

·                     Radio and Television Advertisements

An advertisement on a newspaper web site in conjunction with the print ad will count as a website other than the employer’s website for purposes of recruitment.

             The additional recruitment steps must take place no more than 180 days before filing, and only one (1) of the additional steps may be taken within the 30-day period prior to filing.  The additional recruitment efforts only require the employer to advertise for the occupation involved, and do not require the employer to advertise for the job opportunity, as is required of the newspaper ads.

 Post-Recruitment Report:

            Upon completion of all recruitment steps, the employer must prepare a recruitment report that describes the steps taken and the results.  The report must indicate the number of hires and the number of U.S. workers rejected, and explain the lawful job-related reasons for rejection.  The report need not identify each and every U.S. worker who applied for the position.  The report must be signed by the employer.

             After reviewing the employer’s recruitment report, the Certifying Officer may request copies of applicants’ resumes.

             Applicants’ Failure to Meet Minimum Requirements

             If an applicant fails to meet the employer’s stated minimum requirements for the position, it is a lawful reason for rejection; however, if the applicant lacks a skill that can be acquired during a “reasonable period” of on-the-job training, such a lacking will not be considered a lawful basis to reject the worker.  The term “reasonable period” has not yet been defined by the DOL.

 Converting Pending Cases:

            The regulation allows for the conversion of a currently pending case to PERM, as long as the case is withdrawn and re-filed in accordance with PERM regulations prior to the time the SWA has placed the job order under the current (pre-PERM) regulations.  Employers who withdraw and re-file pending applications will be able to preserve original priority dates, as long as re-filing occurs within 210 days of making the request for withdrawal. 

             Re-filed cases must comply with all the requirements of the new PERM final rules such as recruitment, prevailing wage, and minimum requirements.  The withdrawal and re-filing of pending applications is limited to only to those applications that are “identical job opportunities” when re-filed under PERM.   Identical job opportunity is defined as: SAME employer, alien, job title, job location, job description, and minimum requirements as when filed under pre-PERM regulations.

             Pending applications which are not withdrawn after PERM ’s effective date will continue to be processed under the current rules at backlog reduction centers and regional offices.  Additionally, applications which cannot be re-filed will be treated as new applications under the PERM rules and will be assigned a filing date as of the date the new application was submitted.  No preferences will be given in such situations.

             There are still many unresolved questions and issues with regard to conversion of pending cases to PERM.  The DOL is expected to provide more guidance in the coming weeks.  As soon as the information becomes available, we will have it for you on this website.

 Business Necessity:

             The final rule retains the business necessity standards that were feared to have been disallowed by PERM.   To establish business necessity, the employer must show that the job requirements “bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer.”

             Job Zones/SVP Levels

             The job duties and requirements listed by the employer must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown on the O*NET job zones unless such duties and requirements are documented to have arisen out of a business necessity.

             Foreign Language Requirements

             PERM continues to allow foreign language requirements based on business necessity, and has expended the rule to allow for foreign language requirements in situations such as: safety considerations in certain working environments, and the need to communicate effectively with one’s co-workers or subordinates.

Experience Gained with Sponsoring Employer:

            An employer may use experience gained by the alien when working for the sponsoring employer, if the employer can prove the experience is not “substantially comparable” to the job for which certification is being sought.  “Substantially comparable” means a job or position requiring performance of the same duties more than 50% of the time.  Evidence that must be retained by the employer in the event of an audit includes: “position descriptions, percentages of time spent on various duties, organizational charts, and payroll records.”

            Although the experience gained in a different position with the same employer may be used for certification purposes, an employer may not use any education or training as requirements if the employer paid for the alien to receive such education or training so as to satisfy job requirements for the position.

 Schedule B Occupations:

             Schedule B Occupations have been eliminated by the rule, as the DOL does not believe these occupations have contributed any measurable protection to U.S. workers.

 Laid-Off Employees:

             The final PERM rule requires employers to notify and consider workers it has laid off in the previous six-month period prior to filing the application.  The employer must consider all laid-off workers who previously worked with the occupation for which certification is sought, or in an occupation that required the workers to perform a majority of the essential duties involved in the job.  The employer must document that the position was offered to laid-off workers who are able, willing and qualified for the position, and also document the results of such offers.  This documentation must be kept on file by the employer for 5 years, in the event of an audit.

 Audits:

             The Certifying Officer may request an audit of any labor certification application, either for cause, or randomly.  An employer who has been selected for an audit will receive a letter requesting specific additional information and will have 30 days within which to provide such information to the Certifying Officer.  If the employer does not respond in a timely fashion, the application will be denied, with no administrative or judicial review available.  At the discretion of the Certifying Officer, the employer may also be required to engage in supervised recruitment for any future labor certification filings for up to 2 years for failing to respond to the audit letter.  Even if the employer responds to the audit letter, the Certifying Officer may request additional information and/or documentation or require that the employer engage in supervised recruitment.

Supervised Recruitment

Supervised recruitment in PERM is similar to current supervised recruitment practices.  The employer will be required to place a classified ad in a newspaper of general circulation for a three-day period, including a Sunday, or for one edition of a professional, trade or ethnic publication.  A draft of the ad must be provided to the Certifying Officer, and the Certifying Officer will then approve the ad and direct its timing. 

The ad must advise applicants to send resumes of applications to the Certifying Officer, including an identification number and address as designated by the Certifying Officer.  The ad must also describe the job opportunity, include a wage rate that meets or exceeds the prevailing wage, and summarize the minimum job requirements as contained in the application form.

Recruitment Report

A recruitment report must be submitted to the Certifying Officer within 30 days of the Certifying Officer’s request for the report.  It must be signed in the original by the employer, and identify each recruitment source by name and document contact by letters to sources such as unions, trade associations, and colleges and universities with responses.  Ads must be documented with tear sheets, publication affidavits, or dated copies from the web.  The number of U.S. workers who responded to the ad must be included in the report, with names, addresses and resumes.  The number of interviews conducted and the job title of the person conducting the interviews will also be required.  Finally, specific lawful, job-related reasons for not hiring U.S. workers must be provided.  If an applicant is rejected due to a lack of skills, documentation must be provided that the applicant would not be able to acquire such skills during a reasonable period of on-the-job training.

Decisions on Labor Certification Applications:

            The employer will be notified either electronically or by mail of the final determination on a labor certification application.  If granted, the application and Final Determination Form will be sent to the employer or agent/attorney on record.  

If denied, the Final Determination will provide reasons for denial and advise of what the review procedures are to counter the denial.  The request for review must be made within 30 days of the date of the determination, and if not timely made, the denial will become a final determination of the Secretary of Labor.  If no request for review is made, a new application may be submitted at any time.  If a request for review is made, no new application in the same occupation for the same alien can be filed until the review procedures are completed.

Requests for Review

The Request for Review (“RFR”) is made to the Certifying Officer who denied the application.  It must state the grounds for the request, include the Final Determination, and may not include evidence that is not already in the record.

The Certifying Officer must then assemble an Appeal File and send it to the Board of Alien Labor Certification Appeals (“BALCA”), with a copy to the employer.  The BALCA must afford all parties 30 days in which to submit a legal brief or Statement of Position.  The BALCA must either affirm the denial, direct the Certifying Officer to grant certification, or direct that a hearing be held to consider the case . 

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