Synopsis of the Final DOL Regulation

This final regulation includes the following major changes to current Labor Certification Practices:

1.        The regulation prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications;

2.        The regulation provides a 180-day validity period for approved labor certifications (Employers will have 180 calendar days from the date of the labor certification within which to file an I-140 Immigrant Petition for Alien Worker for the beneficiary of the approved Labor certification with the Department of Homeland Security (DHS));

3.        The regulation prohibits the sale, barter or purchase of permanent labor certification applications;

4.        The regulation requires employers to pay the costs of preparing, filing and obtaining a Labor Certification. The regulation strictly prohibits an employer’s transfer to the alien beneficiary of the employer’s costs incurred during the labor certification or application process;

5.        The regulation reinforces the existing law pertaining to the submission of fraudulent or false information and clarifies the DOL procedures for responding to incidents of possible fraud; and

6.        The rule establishes procedures for debarment from the permanent labor certification program.

The amended regulation prohibits the substitution of alien beneficiaries of labor certification applications as of July 16, 2007. The prohibition will not affect any labor substitution requests that are pending (in progress) with or approved by the DOL prior to July 16, 2007. 

No Modifications to Applications

The regulation clarifies the DOL’s existing “no modification” policy for Labor Certification applications filed on or after March 28, 2005 under the PERM process. The regulation states that requests for modifications to applications, where the application was filed after the rule’s effective date will not be accepted.

180 Day Validity Period for Labor Certifications

Under current regulations, an approved Labor Certification has no expiration date. The amended regulation changes this by requiring the petitioning employer to file an I-140 petition to proceed with the employment based immigration case within 180 calendar days of Labor Certification approval.   

Ban on Sale, Barter, Purchase, and Certain Payments

The regulation prohibits the sale, barter, and purchase of applications and approved Labor Certifications, as well as certain payments to employers in compensation or reimbursement for the employer’s costs incurred to obtain the labor certification. This includes the payment of the attorney’s fees and related costs.  

*There are two types of calculations performed by the Perm system: Time Period Calculations and Time Line Calculations.

*Time Period Calculations are those verifying the number of days an activity took place (an example would be verifying that a job order ran for 30 days). When calculating Time Periods, the day the event occurred is counted as day one and the last day of the event is included in the count.

*Time Line Calculations are those verifying the number of days prior to or after an event (an example of this is verifying the advertisements did not run less than 30 days or more than 180 days from the date of filing). When calculating Time Lines, the day the event occurred is not counted. The next date is counted as day one and the last day of the event is included in the count."

Based on the above information, it is important for petitioners and their attorney's to make sure that their applications meet these time period and time line calculations in order to avoid a denial. Please refer to our May 2, 2005 posting regarding PERM denials for more information on this topic.

WHAT IS AN AUDIT?

Unlike the Reduction in Recruitment (RIR) or Traditional Processing (ROR) processes, which required the employer to provide documentary evidence when filing the application, the PERM process allows the employer to file the application to the Department of Labor without submitting any supporting documentation. The regulations guide the employer as to what is required for filing a PERM application, and instruct that all documentary evidence should be maintained by the company for a period of five years. In most instances, when a government agency allows filings to occur without the submission of documentation (i.e. income tax return) they establish an audit procedure to ensure compliance with the government regulations. In basic terms, a PERM audit is merely a request by the government for the employer to provide documentary evidence, which proves all information that the employer attested to in the PERM application. The audit determines that all statutory and regulatory requirements have been met for the PERM application. The DOL will determine the following when processing the PERM application: 1) Did the employer meet the procedural requirements of the regulations; 2) Was the U.S. labor force tested and no qualified U.S. workers were found; 3) Will the employment of the alien have a damaging effect on wages and working conditions for U.S. workers likewise employed. The following are examples of what a PERM audit may review: are the employer's job requirements too restrictive, does the wage offered by the employer meet the prevailing wage requirements, did the employer conduct proper recruitment and adequately test the U.S. labor market. An employer should gather and organize all documentation into a comprehensive file prior to submitting the PERM application. This documentation should be kept readily available in the event of an audit by the DOL for a period of five years. The DOL will no longer be issuing "Notice of Findings" (NOFs) as they had previously with the prior RIR and ROR systems. In the past, NOFs had allowed the employer to have an opportunity to correct any oversights that may have occurred in the application and resubmit the application for continued processing. The new PERM system will not issue NOFs, instead an audit letter will be sent to the employer requesting legal analyses and business necessity documentation in reference to the particular application under audit.

There will be two types of audits performed by the DOL. The first is the "targeted" audit, which occurs when the DOL finds a specific fault with the application, and the second is the "random" audit, which will assist the DOL in ensuring the integrity of the new PERM system and its' regulations. In the next few paragraphs we will explain several of the reasons that may trigger an audit in your PERM application.

The DOL will attempt to verify whether or not the company is a bona fide business entity and how many employees are on the company payroll. Smaller businesses will be at a higher risk for these types of audits. The ETA 9089 (PERM application) includes questions regarding how many workers a business employs, and in what year the company started doing business. The answers to these questions may cause the auditors to research the employer's tax identification number, verify the U.S. address of the employer, and ultimately send out an audit letter to the company to authenticate that the company is a verifiable business entity with the ability to employ the worker.

Another common audit may be the question of ability to pay. Usually the employer provides financial evidence at the I-140 stage of the Green Card process; however, the DOL may issue an audit letter to verify that the employer has the ability to pay the prevailing wage during the PERM review process. The employer will need to prove that the company has sufficient funds to pay the prevailing wage, and show that the company will be putting the alien on payroll on or before the alien's proposed arrival to the United States. The DOL may also audit to obtain a copy of the "Prevailing Wage Determination," that was issued to the employer by the State Workforce Agency (SWA). They will use the prevailing wage determination to verify that the wage listed on the PERM application is correct and valid for the position and location of the job.

As we have previously stated, it is critical that employers maintain detailed files on all recruitment efforts that are made for a PERM application. An audit may request copies of all recruitment efforts that were taken for a particular application and a detailed outcome of these recruitment steps. This type of audit will corroborate that all the required recruitment efforts were executed within a 6 month period of filing the application and that the employer made a good faith test of the U.S. labor market before applying for PERM. The employer should maintain information on each applicant and detail the reason/s why they were not qualified for the position offered. Resumes, interview questionnaires, and a comprehensive recruitment report may be requested to show that recruitment took place and each applicant was considered for the position.

Another "red flag," for the DOL auditors would be substantial lay offs within 6 months prior to the filing of the application. The DOL is able to cross check databases to determine if the employer has had any lay offs, and would issue an audit requesting documentation that laid off workers were given notification and consideration for the position prior to the filing of the PERM application.

As PERM is an online system, a critical concern for audit may be, "Uniformity in Employer Job Requirements". The DOL will have easy access to all cases filed by an employer and may look for inconsistencies in job requirements and job descriptions for each applicant. For example, if an employer is filing numerous Software Engineer positions with the minimum requirements as a Bachelor's degree and 3 years of work experience, then in order to obtain the EB2 category for a particular applicant, files the same job title and job description with the minimum requirements as a Master's degree and 2 years of experience, an audit may occur.

AUDIT CONDUCTED AND CONSEQUENSE?

A PERM labor certification may be examined and immediately certified or an audit may be issued before a final determination is made by the DOL. The audit letter should include the following information: 1) state the documentation that is to be submitted; 2) state the due date of the requested documentation; 3) advise that the application will be denied if employer fails to submit the documentation, and that no administrative or judicial relief will be available. The employer must submit the response to the audit letter within 30 days and will be given a "one time only," 30 day extension if "good cause," is provided when requesting the time extension. The DOL stresses that employer should avoid requesting extensions, as it has been repeatedly emphasized that the employer should not submit any application until they have a comprehensive file consisting of all evidence for the PERM application. To this end, the DOL feels that the employer should be prepared to answer any audits and extensions will rarely be granted. Once the employer responded to the audit letter, a certifying officer will review the response and decided if the documentation is adequate hence certifying the applicant; additional supplemental information is needed before a decision is made; or that the case is denied and any future labor certifications will need to be prepared under DOL supervised recruitment.

The denial of a labor certification or supervised recruitment is not the most awful consequences of an audit letter, although these are definitely not pleasant, it is important to remember that criminal proceedings against the employer, alien, agent, or attorney can occur if the laws and regulations are not abided by. Employers and aliens will be asked to sign the ETA 9089 forms under penalty of perjury once an approval is issued. If a misrepresentation occurs and is later discovered in the I140/485 stage, the consequences could be grim for all parties involved.

CONCLUSION

It is very important to keep in mind that the DOL will make its initial decisions to certify the labor certification based on the information found within the four corners of the ETA 9089. If the ETA 9089 is detailed and provides all the relevant information, then it is likely that an audit could be avoided altogether. In the event that an audit letter is issued employers must make sure that they keep diligent files about each PERM case, including meticulous recruitment summaries and copies of all documentary evidence. As this system is very new and updated information about regulations and tips for filing PERM application are released on a regular basis, it is advisable to speak with an immigration attorney to assist with any questions or concerns when filing a PERM Labor Certification application.

Question: What is the process by which an employer registers and files an application on line?
In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

Permanent Online System account - An account is created after an employer has submitted registration information on-line at www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

Sub-account - The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

Federal Employer Identification Number (FEIN) - The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

Username - The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

Password - An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration,the individual initially accessing the account is required to create a new password.
The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

Personal Identification Number (PIN) - The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.

Question: Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?
Yes, an attorney or agent may submit applications under the following
circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the
employer will change the employer's temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a subaccount for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer's PIN. When the attorney or agent logs in and changes the attorney's or agent's password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

Question: How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?
The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.
NOTE: The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

Question: If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?
No, a parent company can not create sub-accounts for subsidiaries having FEINs different from that of the parent company in order to centralize administration and control. When an application is being completed using a sub-account, employer information from the main account, including FEIN and address, is automatically populated into the application and that information can not physically be changed or altered.

Question: Will the National Processing Centers issue confirmations of receipt for mail-in applications?
No, the National Processing Centers will not issue confirmations of receipt for mail-in applications. If the employer wishes to maintain a record of having mailed the application, it is recommended that a mail service which provides such documentation be used.

Question: Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?
No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application is data entered into the system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

WITHDRAWAL

Question: How can a pending application filed under PERM be withdrawn?
If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.

Question: Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?
No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

RECRUITMENT

ADVERTISEMENT

Question: Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: "5 Attorneys," "Attorneys" or "Attorneys, multiple openings"?
As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.


JOB ORDER

Question: Must the employer contact all individuals identified as a "match" by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?
The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.

Does the 24-30 month processing projection apply to both RIR and TR cases or will RIR cases get some preference?
The DOL will not automatically give preference to RIR cases over TR cases. However, the DOL does anticipate that the processing time for RIR cases will be shorter (presumably because recruitment has already been conducted in RIR cases).

Are cases that are being sent to BPC being assigned new case numbers for tracking purposes or are they retaining the case numbers originally assigned to them by the State Workforce Agencies (SWA) or Regional Offices?
All case are being assigned new case numbers once they are entered into the Permanent Backlog System (PBLS). Once a case has been entered into the PBLS, the BPC will send the employer and attorney of record (if applicable) a letter with a new case number.

When will I receive my 45-day letter?
Due to the large volume of files transferred to the two Backlog Processing Centers, DOL cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center. In the designated space at the bottom of the Selection of Continuation Option Letter, the petitioner should indicate decision as to whether they wish to withdraw this application or they wish to continue the processing of this application with a check mark.

The beneficiary of the labor certification has a child who is about to "age-out," can the DOL expedite this case?
The DOL prohibits the expediting of applications.

The petitioning company has been acquired by another company. The new company wants to continue the petition. What needs to be done?
The new employer must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity and establishes the legal buyout or "successor in interest" position. In addition, a new Form ETA 750 Part A and Part B must be submitted to the DOL to continue the permanent foreign labor certification process.

The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." What do I need to do?
Please refer to item 6 on Form ETA 750 Part A and item 8 on Form ETA 750 Part B. These items must match exactly on your application. Initial and date any corrections you make on your application and return it to the appropriate Backlog Processing Center.

The message on my Corrections List states, "Basic Rate Per is required entry." The amount of pay is included on the application. What's the problem?
Item 12a/b on Form ETA 750 Part A must include both a rate of pay (in dollars and cents) and a period (hourly, daily, weekly, bi-weekly, monthly, or annually).

Does the BPC case continuance letter need to be signed only by the employer or can the attorney of record sign?
Either the employer or attorney of record may sign. The DOL however requests that the employer coordinate with the attorney to determine who will submit the continuance letter to ensure that the appropriate BPC does not receive duplicate or conflicting responses. In the event of conflicting responses, the BPC will default to the employer's response.

The message on my Corrections List states, "Failed Existence Check: Employer's address/phone number does not reference back to employer's name." What should I do to resolve this problem?
You must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity at a specific address to the appropriate Backlog Processing Center.

The message on my Corrections List states that, "Consulate Location is a required entry." The beneficiary is currently in the U.S. and will apply for adjustment here. Why must I enter a consulate location?
Entries are needed in items 10a or 10b on Form ETA 750, Part B. Please mark the appropriate box with an (X) and enter a complete city and foreign country (10a) or city and state (10b) on the application. Initial and date any corrections made to your application and then return the application to the appropriate Backlog Processing Center.

The employer has moved to a new address. How should we notify the Backlog Processing Center of this change?
Send the appropriate Backlog Processing Center a written request to return the original Form ETA 750 Part A and Part B. Make the appropriate change of address, date and initial the change, and return the Form ETA 750 Part A and Part B to the appropriate Backlog Processing Center. Employers who have already recruited for the position in a labor market are cautioned that a move to a new work location may require a new labor market test.

Please note that changes, additions, or deletions to the application must be initialed and dated by the employer on Part A and by the beneficiary on Part B. It is unacceptable for the attorney representing the employer and/or beneficiary to make amendments to the Form ETA 750.

The employer has changed names. Do we have to submit a new application or may we change the original application? How should this be done?
The employer must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity. In addition, a new ETA 750 Part A and Part B must be provided to continue the permanent foreign labor certification process. If the Form ETA 750 Part A and Part B have been returned for correction, the changes may be made on those existing documents.

Please note that the new employer or entity must be connected to the old one (a successor-in-interest) and cannot be an entirely new employer.

Our office recently received a request for "corporate documents" from the BPC. The petition was for a housekeeper. Is this request sent in error or how do we respond?
If the application is for a domestic servant in a private household, the employer should provide a recent tax return and/or leases, utility bills, etc. that establish the domestic employer at the address on the application.

Are all cases filed between 1/1/05 and 3/28/05 to be processed by the BPC rather than the Atlanta or Chicago Processing Centers?
All cases filed between 1/1/05 and postmarked before 3/28/05 will be processed by the Backlog Processing Centers.

Many clients are anxious because we have not received the 45-day letters from the Backlog Processing Centers in connection with their application. How can we follow up on status of cases and at what point should we worry about not getting a letter?
Due to the large volume of files transferred to the two Backlog Processing Centers, DOL cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center within 45 days.

How will RIR and TR priority be handled over PERM cases?
Backlogged cases will be processed in Philadelphia and Dallas. PERM cases will be processed in Chicago and Atlanta.

Will an RIR case that has been pending at the federal level for about 1 year be transferred to the Backlog Center, if there has been no decision or notice of finding issues?
Yes, all outstanding cases will be transferred to the Backlog Processing Centers.

Are all backlogged cases expected to be entered in the database by 3/28/05 so that employers can check status on-line?
DOL was not able to enter all cases into the database by 3/28/05. DOL is currently exploring steps that may be taken to accommodate inquiries regarding case status.

When will the BPC will begin adjudicating cases?
The Backlog Processing Centers have begun to process cases from the Regional Offices that have been completely entered into PBLS and for which the Backlog Processing Center has received a response to the Notification Receipt letter.
When will a public case information system be up and how will we access it?
DOL will be posting dates the Regional Offices and SWA shipped files to the BPCs on the home page of the Division of Foreign Labor Certification which is http://workforcesecurity.doleta.gov/foreign/contacts.asp.

Once the 45-day letter is received by a backlog center, approximately how soon will labor certification determinations be made?
DOL is unable to provide an exact timeframe for processing cases after the response to the 45-day letter is received. The processing of a case is dependent upon the timely and complete response of the applicant to all issues and to the FIFO status of a case.

*The DOL takes the position that only OES prevailing wage determinations dated March 8, 2005 or thereafter can be used when filing the PERM labor certification with the DOL. In those cases where employers have utilized OES wage determinations dated prior to March 8, 2005, cases have automatically been denied.

*The State Workforce Agency (SWA) job orders must have been placed for at least 30 days. Where work orders were placed for less than 30 days, those cases were denied. Many employers had placed work orders in the month of February which was a 28 day month. Therefore, if a work order was placed from 02/21/2005 to 03/21/2005 that job order would have only been posted for 28 days. Therefore, employers must be very careful in calculating the number of days for which each job order has been placed.

*The DOL has denied a number of applications that were submitted prior to the 30 day period after the end of the recruitment period. As per DOL guidelines, in addition to the aforementioned SWA work order, 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. If an employer is hiring someone for a DOL-designated professional occupation, the employer must also complete at least 3 of the following10 recruitment efforts:

1.recruitment at job fairs;
2.recruitment on the employer's website;
3.job search website other than the employer's site;
4.on-campus recruiting;
5.use of trade or professional organizations for recruitment;
6.use of private employment firms;
7.employee referral program with incentives;
8.use of campus placement offices;
9.use of local and ethnic newspapers;
10.or use of radio and television advertisements.

These recruitment 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. In many cases where PERM based labor certifications have been denied, the employers have filed the case with the DOL before this 30 day period has run.

*PERM guidelines specifically state that only employers can register to use the online PERM system. Once the employer registers, they can create a sub account for their attorneys. The registration must be submitted by an individual with actual hiring authority. The DOL has indicated that it has the ability to track the source of registrations and PERM cases may be denied if they can trace an employer registration to an attorney or agent's computer.

*Finally, another common reason for denials has been where an employer has stated that they did not offer the job to the foreign national who is listed as the beneficiary on the application.

Another issue that many employers are facing with the new PERM system is that it is taking them weeks to get their PIN from DOL once they register on to the PERM system. The reason for this is that the DOL verifies the existence of every employer that attempts to register on to the system. Initially, employers received their PIN number within a matter of hours. However, now that more and more employers are attempting to register, it is taking employers an average of two to three weeks to receive any feedback on their registration. Due to the length of the time it is taking DOL to provide feedback, many employers have sent in multiple registration requests which are making this problem even worse. The Department of Labor has requested that employers only register once on the PERM system.

Below is a summary of some of the key points that emerged.

For a job order to be valid, you must have gone through the SWA. A direct posting to America's Job Bank is not sufficient; however, if you went through the SWA's on-line job order placement system (which may, in turn, have put the job onto America's Job Bank), that should meet the regulatory requirement.

Backlog Reduction Centers (BRCs):

DOL hopes to complete the transfers of the existing cases to the BRCs by the end of the fiscal year (9/30/05). Its goal to complete processing of the backlog is 24 to 30 months.

Conversions:

To convert a previously-filed labor certification application to PERM under the re-filing provisions, the two applications must be "identical". Yet, due to variations from region to region and state to state, some contents of previously-filed applications cannot be transferred to the new ETA Form 9089 in identical form. DOL is looking at this problem. But, in the meantime, one possible strategy is to amend the previously-filed application in response to the 45-day letter from the BRC.

Registration:

A major difference between the LCA system and the PERM electronic filing system is that PERM requires registration (registration is optional under LCA).

Only the employer can register -- not the attorney. The employer may set up sub-accounts for the attorney(s) handling its immigration work, once the employer is registered, but the employer is considered responsible for the labor certification. One corporation can have multiple registrations.

Each attorney will need to have a sub-account in his or her own name. The system will not provide the ability for attorneys to share documents with one another.

The final PERM regulation was published in the Federal Register on Monday, December 27, 2004. The rule became effective on March 28, 2005, 90 days after its publication. This means that all labor certifications filed from now on will be processed under PERM regulation. Below you will find an initial analysis of the new PERM process. In the coming weeks and months, we will provide more details and analysis on the various aspects of PERM.

Role of SWAs under PERM
As of March 28, 2005, the State Workforce Agencies (SWAs) have stopped receiving permanent labor certification applications. The SWAs will, however, continue to play an important, but very limited, role in the new PERM based labor certification process. Before a PERM 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. At this time, 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) requires registration. Only the employer can register -- not the attorney. The employer may set up sub-accounts for the attorney(s) handling its immigration work, once the employer is registered, but the employer is considered responsible for the labor certification. One corporation can have multiple registrations. Each attorney will need to have a sub-account in his or her own name. The system will not provide the ability for attorneys to share documents with one another.

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 that has not been assigned a job order; the original labor certification application must also be withdrawn. One potential significant issue with this 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 exactly 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. The notice must further state that any person may provide documentary evidence regarding the application to the CO of the DOL. Therefore, the notice must also state the address of the CO at the DOL. 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 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; any job duties that exceed those listed on the ETA Form 9089; and/or 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 following 10 recruitment efforts:

1. recruitment at job fairs;
2. recruitment on the employer's website;
3. job search website other than the employer's site;
4. on-campus recruiting;
5. use of trade or professional organizations for recruitment;
6. use of private employment firms;
7. employee referral program with incentives;
8. use of campus placement offices;
9. use of local and ethnic newspapers;
10. or use of radio and television advertisements.

Only one of the aforementioned 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 standard company procedure; 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.