PERMANENT ALIEN CERTIFICATION PROGRAM ( PERM )

HIGHLIGHTS of PERM 

• Effective Date
• Prevailing Wage
• Recruitment
• Form & Filing
• Pending Cases
• “Special Handling” for College & University Teachers
• Schedule “A” Occupations
• Other Provisions
• Recent Memos & Regulations

1 . EFFECTIVE DATE of the PERM Program:

March 28, 2005

2 . PREVAILING WAGE ISSUES

2.1 Effective date of prevailing wage rules: employers seeking a labor certification are required to comply with the new prevailing wage laws that will be into effect as of March 8 th, 2005 .

2.2 Payment of 100% of the Prevailing Wage: t he prevailing wage required to be paid is 100% of the prevailing wage. The 5% variance which allowed the employers to pay 5% less of the prevailing wage is no longer allowed. The DOL has indicated that t he prevailing wage standard is the same for both PERM and the H-1B petitions filed after March 8 th 2005 .

2.3 Inclusion of Discretionary Bonuses, Commissions, Cost-of-Living Allowances

These items are included in the OES wage data. Under current policy, they can be included in determining the wage offered by the employer as long as such payments are guaranteed by the employer, and are thus not discretionary. However, if the wages are based on commissions, bonuses or other incentives, an employer must guarantee a prevailing wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage. However, there still remains the conflict that the OES survey measures the average rate of wages paid in the survey year’s sample but the employer must guesstimate what are typically variable and discretionary pay factors on a guaranteed basis and must pay them on a periodic versus annual basis.

2.4 Four wage levels are available: governmental surveys such as the OES shall provide for 4 levels of wages commensurate with experience, education, and the level of supervision. If only two levels are currently provided, two new levels can be created by dividing by 3 the difference between the two levels offered, adding the quotient obtained to the first level, and subtracting that quotient from the second level. Guidance to the State Workforce Agencies on how to apply the new four levels will be forthcoming.

2.5 The offered wage is not required in recruitment except for internal posting: Contrary to the proposed regulations, the final regulations do not require that the offered wage be included in the recruitment efforts; however, it does have to be included in the internal posting but a range is permitted as long as the bottom is 100% of the prevailing wage, and the range must include the “offered wage,” i.e. the wage offered to the alien at the time the labor certification is filed.

2.6 Prevailing Wage Form: t he final rule permits the use of separate prevailing wage forms provided by each State Workforce Agency.

2.7 Validity of the prevailing wage determinations : the validity will be no less than 90 days and no more than one year from the date of the determination.

3. RECRUITMENT PROCEDURES

3.1 Recruitment time period E mployers are expected to conduct recruitment during the 30- to 180-day period PRIOR to filing the application for labor certification.  

3.2 Job Order The employer must place a job order with the SWA for a period of 30 days. Form ETA 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.

3.3 Posting of Notice Similar to the current regulation, t he employer must post notice of the job opportunity for at least 10 consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage.

3.4 Recruitment Advertisements The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed more than 30, but not more than 180 days before filing. The ads may be placed on consecutive Sundays. If the job is located in a rural area with no Sunday edition, the employer may use the edition with the widest circulation. However, the use of a suburban newspaper on a day other than Sunday is not allowed. Placement of the ad under an inappropriate heading or keyword would be considered a failure to make good-faith efforts to recruit U.S. workers. In the case of jobs requiring experience and an advanced degree, the second Sunday advertisement can be replaced by an ad in an appropriate professional journal, although this is optional.

3.5 Contents of the newspapers ads The ad must (1) list the name of the employer, (2) list the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), (3) provide a description of the job specific enough to apprise US workers of the job opportunity (4) The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Form 9089. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage.

3.6 Additional Recruitment Steps for Professional Workers The PERM regulation requires that applications for professional jobs must have THREE additional recruitment steps. The list of permitted additional recruitment steps in the final PERM regulation include:

• Job fairs;
• Employer’s web site;
• Job search web site other than employer’s;
• On-campus recruiting;
• Trade or professional organizations;
• Private employment firms;
• An employee referral program, if it includes identifiable incentives;
• A notice of the job opening at a campus placement office, if the job requires a degree but no experience;
• Local and ethnic newspapers, to the extent they are appropriate for the job opportunity and,
• Radio and television advertisements.

Further, a web page generated in conjunction with a print ad counts as a website other than the employer’s. The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month and only ONE of the additional recruitment steps may take place within 30 days of filing. Form ETA 9089 requires the employers to specify the dates of each additional recruitment step. Interestingly, the final rule states that “alternative recruitment steps only require employers to advertise for the occupation involved in the application rather than for the job opportunity as is required for the newspaper ads”.

3.7 Recruitment Report The employer must prepare a recruitment report that describes the recruitment steps taken and the results. This documentation of the employer’s recruitment efforts is not submitted with the labor certification application but must be employers retained for five years (measured from the date on which the application for labor certification is filed with DOL).
The recruitment report must include the number of hires and the number of US workers rejected, categorized by the lawful job-related reasons for rejection. The Certifying Officer may, after reviewing the employer’s recruitment report, request copies of the US workers’ resumes, sorted by the reasons for rejection. The employer must sign the recruitment report. In response to numerous comments from employers who receive a large volume of unsolicited resumes, the final rule does not require the employer to identify the individual U.S. workers who applied for the job opportunity.

4. FORM AND FILING

4.1Form Using a new form, Application for Permanent Employment Certification (ETA 9089), employers can file either electronically or by mail to the appropriate ETA processing center. Faxing will not be allowed.

4.2 Where to file applications? Applications can be mailed directly to the appropriate centralized processing center. Prior to January 1, 2005 , completed cases were forwarded to their respective DOL regional office, unless instructions are received to forward to one of the new centers. As of January 1, 2005 , the SWAs will not open any new permanent labor certification cases, but will merely "date stamp" and log the case and forward it to either Atlanta or Chicago . Last January 13, 2005, t he Employment and Training Administration (ETA) of the Department of Labor (Department or DOL) issued a Notice to announce that DOL has moved its foreign labor certification field staff in the Atlanta and Chicago Regional Offices to the new Atlanta and Chicago National Processing Centers . This Notice provides the public in the Atlanta and Chicago regions with contact information regarding these two new processing centers. All foreign labor certification processing activities previously conducted in the Atlanta and Chicago Regional Offices will now be assumed by the corresponding Atlanta or Chicago National Processing Centers . Applications filed by mail must bear the original signature. A priority date will be assigned as of the date of receipt, provided the form is accepted for filing.

4.3 Supporting Documentation and Retention of Documentation. Supporting documents must be retained for five years from date of filing. Whether filed electronically or by mail, no supporting documentation will be filed with the ETA 9089. Instead, the employer must maintain supporting documentation in the event an audit is required or the Certifying Officer otherwise requests certain documents. Such documentation, along with a copy of the ETA form, must be retained for five years from the date of filing ETA 9089.

4.4 No filing fees are required

5. PENDING CASES

5.1 Conversion of Pending Cases. PERM allows the withdrawing and re-filing of cases prior to the placement of a job order by the SWA. An employer who successfully withdraws and re-files a pending application will preserve the original filing date. This will be a key objective given the retrogression on Visa Numbers of the Employment Based Third Preference (EB-3) categories. In addition, PERM applications will be processed in the order of receipt. However, all re-filed cases must comply with all the requirements of the new PERM final rules, including recruitment, minimum requirements, SVP, business necessity, audit procedures and prevailing wage. Conversion means withdrawal and refiling, and only for “identical job opportunities” . If the application cannot be successfully re-filed, it will be treated as a new application. No preference of any type is given to pending applications that are withdrawn and not successfully re-filed. The application will be assigned a filing date as of the date of the request and then will be processed in-turn. It is clear that additional guidance and interpretation must be issued by DOL before we can know how rigidly the “identical” concept will be applied in practice, since it is unduly restrictive as drafted in the final rule. 

6. SPECIAL HANDLING PROVISIONS

Applications for certification of employment of college and university teachers are filed by submitting a completed ETA Form 9089, “Application for Permanent Employment Certification,” with the Department of Labor. The supplementary material to the final rule clarifies that only college and university teachers are covered by special handling. Colleges and universities may utilize special handling or the regular PERM process. The employer must be able to document that the alien was found to be more qualified than each U.S. worker who applied for the job opportunity.

7. SCHEDULE “A” OCCUPATIONS

The U.S. Department of Labor has recognized that there is a severe labor shortage for certain professions. These occupations have been designated as "Schedule A" occupations, thereby exempting them from undergoing the labor certification process. While Schedule A occupations get to bypass the labor certification process, the Department of Labor still retains authority over some requirements for Schedule A designation. It has been largely documented that there is a severe labor shortage for registered nurses and physical therapists. These occupations are designated qualify for Schedule A.

First, the regulations require that all Schedule A positions include a prevailing wage determination. Employers will continue to file Schedule A applications with the Department of Homeland Security (DHS) as part of the I-140 petition process.

Group I of Schedule A continues to include professional nurses and physical therapists, and Group II includes aliens to be employed aliens of exceptional ability in the sciences and arts . The final rule also provides that performing artists of exceptional ability will be included as in Group II of Schedule A. Under the current process, employers wishing to file for performing artist of exceptional ability utilize Special Handling procedures.

PERM modifies the criteria by which a registered nurse can qualify for Schedule A. Substantive requirements remain largely unchanged, though professional nurses may now demonstrate eligibility though passage of the National Council Licensure Examination for Registered Nurses (NCLEX-RN). Alternatively, eligibility may continue to be demonstrated by a full and unrestricted (permanent) license to practice nursing in the state of intended employment or a Certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS). The supplementary material included with the final rule clarifies that (1) a state license must be permanent; (2) passage of the CGFNS skills test without the certificate will not suffice in terms of allowing for eligibility; and (3) a prevailing wage determination for professional nurses will be required.

The final rule eliminates Schedule B.

8. OTHER PROVISIONS

8.1 Handling of pending applications which are not withdrawn after PERM ’s effective date will continue to be processed under the current rules in backlog reduction centers and regional offices. Processing times for these applications should continue to be posted on the DOL website.

8.2 New Standards on Experience Gained On-the-Job. Although the PERM provision that flatly prohibited any experience gained working for the employer in any capacity was not retained, some new standards are promulgated --some are restrictive, some surprisingly liberal. An employer may use experience gained by the alien in a different job if it can prove that the experience is not “substantially comparable” to the job for which certification is being sought. “A substantially comparable job or position means a job or position requiring performance of the same duties more than 50% of the time.” Although experience may be gained in a different job, an employer may not use any educational or training requirements that it paid for.

8.3 New Definition for “Employer”. DOL had intended to expand the definition of employer to disallow experience gained with predecessor organizations (such as entities that were acquired), successors-in-interest, a parent, branch or subsidiary, or affiliate, wherever located. In the face of overwhelming opposition to the provision, even from union organizations, DOL agreed that this definition was too broad and set forth a new definition. Section 656 17(i)(5)(i) states: “The term ‘employer’ means an entity with the same Federal Identification Number (FEIN), provided it meets the definition of an employer at section 656.3. Persons temporarily in the U.S. cannot be employers.

8.4Anti-fraud provisions include verification that employer is a bona fide business entity with employees on its payroll. The CO of the PERM Processing Center can request an audit of any permanent labor certification either for cause or randomly. If selected for audit, the Employer will receive an audit letter specifically stating the additional documentation to be submitted, set a date 30 days from the date of the audit letter for submission and advise that the application will be denied if the information is not received by the deadline. If the employer does not respond as required, this will be considered a refusal to exhaust administrative remedies and no review is available either administratively or judicially.

8.5 Invalidation of Labor Certification: Before PERM , once a Certifying Officer approved a case, they lost control over it. However, PERM regulations do authorize a Consul, a Court or the Department of Homeland Security to revoke an approved labor certification, but only after a finding of fraud or willful misrepresentation of a material fact.

RECENT MEMOS & REGULATIONS

• USCIS Interim Guidance Regarding Prohibition of Labor Substitution Requests (June 01, 2007)