What is PERM?
PERM Application Process
Mandatory Recruitment for all Positions Under PERM
Recruitment Report and Resume Retention
Conversion of Pending Cases to PERM
Costs and Risks of Converting Pending Cases to PERM
Standard for "Qualified" U.S. Workers
Changes in Experience Requirements
Alien Influence and Control over Job Opportunity
Layoffs
Schedule A I-140 Filings
How can the Law Offices of Richard S. Bromberg help you?
Further Sources of Information
PROGRAM ELECTRONIC REVIEW MANAGEMENT (PERM)
By: Elizabeth H. McGrail
| What
is PERM? |
|
| The Department of
Labor's (DOL) new labor certification application processing system,
known as PERM, went into effect on March 28, 2005. PERM is the first
step in obtaining a green card through employment. |
|
| PERM
Application Process |
|
| Under the PERM system,
a new labor certification application form, Form ETA 9089, will replace
the old Form ETA 750 A & B. Employers can file the new
application form either electronically or by mail. No supporting
documentation is included with the form. Instead, the employer must
maintain all supporting documentation on file for five years after the
date of filing, and may need to submit it to the DOL upon request. Prior to filing the application, the employer must obtain a prevailing wage determination from the State Workforce Agency (SWA) responsible for the region of intended employment. The employer must offer to pay the foreign worker 100% of the prevailing wage as determined by the SWA, not 95% as previously allowed. As of March 28, 2005, a new four-tier wage system replaced the existing two-tier wage system. The DOL staff initially review a PERM application to ensure that the petitioning employer is a valid business. An additional review determines whether or not the DOL should conduct an audit, and a random selection of applications is audited to ensure the procedure's overall integrity. The DOL will also audit other applications based upon unpublished selection criteria. If audited under PERM regulations, an employer will receive an automatically generated letter requesting information the DOL would like to review before case adjudication. The DOL has stated that these letters will request only the information needed to make a determination in the case. The employer has 30 days to answer the audit, but Certifying Officers may grant one 30 day extension for responses. If an employer does not provide a timely response, the DOL will deny the application. In addition to denying the application, the DOL may, at its discretion, require that an employer pursue regular supervised recruitment in future labor certification applications for up to two years. An order requiring supervised recruitment for future cases is a harsh penalty because it will significantly increase an application's processing time. The DOL scrutinizes supervised recruitment applications closely and therefore, the process of preparing such an application is more labor intensive and costly. Certifying Officers may also order supervised recruitment in cases where they believe the labor market requires additional scrutiny. There are no established criteria to limit or guide the Certifying Officers' discretion in this area. The DOL estimates that cases approved without an audit will be processed in 45 to 60 days. An approved case filed electronically will be certified and returned to the employer electronically. The employer must sign the certified application and retain a signed copy. The employer will later file the original signed application with an Immigrant Visa Petition (Form I-140) at U.S. Citizenship and Immigration Services (UCIS). |
|
| Mandatory
Recruitment for All Positions Under PERM |
|
| Two Sunday Newspaper Advertisements:
The employer must place an advertisement on two different Sundays in
the newspaper circulated in the area of intended employment and most
appropriate to the occupation and workers likely to apply for the job
opportunity. The advertisements must run no more than 180 days and no
fewer than 30 days prior to filing the PERM application. An employer
may choose to run an advertisement in a professional journal, in lieu
of one of the Sunday newspaper advertisements, if the position requires
experience and an advanced degree and a professional journal is a
reasonable form of recruitment for the position. Job Order with the State Workforce Agency (SWA): The employer must place a job order with the SWA serving the region of intended employment for a period of 30 days. Job orders are typically posted through America’s Job Bank or the state equivalent. The job order must begin no more than 180 days prior to filing the application. Unlike the print advertisements, the job order may end within the 30 day period prior to filing the application. Posting Notice: The employer must post the job opportunity at the employment site for 10 consecutive business days, and the notice period must conclude at least 30 days prior to filing the application. In addition, the employer must comply with its own internal posting procedures. For example, if the company’s practice is to post internal job opportunities on its intranet for two weeks, then it should post PERM job opportunities in the same manner. Additional Requirements for Professional Positions: In addition to the two Sunday advertisements, the 30 day SWA job order, and the internal posting, employers recruiting for professional positions must perform three additional forms of recruitment from the list below: -Job fairs -Employer website -Job search website other than the employer’s (an internet ad generated in conjunction with a print ad will count for this purpose) -On-campus recruiting -Trade journal or newsletter -Contracts with private employment firms -Employee referral programs with incentives -Posting at a campus placement office (if the job requires a degree, but no experience) -Local and ethnic newspapers (if appropriate) -Radio and television advertisements All of the additional recruitment must take place during the 180 days prior to filing the application. Only one of the forms of additional recruitment for professionals may take place in the 30 days prior to filing. The additional recruitment steps need not be specific to the position in the labor certification, but may simply announce an opening in the general occupation. |
|
| Recruitment Report
and Resume Retention |
|
| The employer must
prepare and retain a signed recruitment report and submit it to the DOL
in the case of an audit. The report must describe the recruitment steps
taken, the number of hires, and the number of rejected U.S. workers
categorized by the lawful job-related reasons for rejection. The employer must also retain each resume received in reply to the PERM recruitment campaign for five years after filing. If an employer receives a large number of unsolicited or general applications for employment, note in the PERM recruitment advertisements that applicants must write the specific job title or job code on their resumes. In addition, employers should sort and retain resumes according to the reason for rejection. |
|
| Conversion of Pending
Cases to PERM |
|
| All applications filed
prior to PERM have been forwarded to one of the DOL Backlog Reduction
Centers for further processing. In certain
circumstances, an employer may withdraw a case currently filed as a
Reduction in Recruitment (RIR) or regular supervised labor
certification application and file it again under PERM without losing
the application's original priority date. To retain the priority date,
the newly filed PERM application must be for a position with the same
employer, foreign national, job title, job location, job requirements,
and job description as in the original application. A new PERM case
must be filed within 210 days of the prior application's withdrawals in
order to maintain the original priority date. However, to re-file a
case under PERM, the employer must conduct a PERM-compliant recruitment
campaign during the six months prior to re-filing the application. |
|
| |
Costs and Risks of
Converting Pending Cases to PERM |
| The recruitment
campaign required prior to re-filing under PERM makes conversion
costly. In addition, if qualified U.S. applicants are currently
available for the advertised position, it may not be advisable to
advertise again. The strict definition of an identical application also
presents problems. If the DOL finds an application changed, the
Department will process the re-filed application under the later filing
date and deem the original application withdrawn. In addition, the
original application's priority date is lost. This could be disastrous
for employees who need to preserve labor certification filing dates for
seventh and subsequent year H-1B extensions under AC21 or for
employment-based third preference applicants from India, China, and the
Philippines who are subject to priority date quotas. Employers must
weigh the potential time savings under PERM against the costs and risks
of re-filing a pending labor certification application under
PERM. |
|
| Standard for
"Qualified" U.S. Workers |
|
| A U.S. worker is
qualified for the position if he or she possesses the education,
experience, and skills the employer requires for the position. If
a U.S. worker does not possess one of the required special skills
listed in the application, but could acquire the skill during a
“reasonable period of on-the-job training,” then the lack of the skill
is not a lawful basis for rejecting the worker. PERM regulations
do not define the length of a reasonable period of training. |
|
| Changes
in Experience Requirements |
|
| The new regulations
change the requirements that an employer may set for a position.
Under current law, a foreign national may not generally satisfy the
experience requirement of a labor certification application using
experience gained while working for the petitioning employer in the
same position for which certification is sought. The DOL established
this rule so that employers must provide U.S. workers the same
opportunity as foreign nationals received to obtain on-the-job training. The PERM regulations state that a foreign national's experience gained with the petitioning employer may be used as qualifying prior experience if the experience was gained in a position that is not substantially comparable to the position for which certification is sought. “Substantially comparable” is defined as a job that requires performance of the same job duties for more than 50 percent of the time. This requirement can be documented with descriptions for the prior and current positions indicating the percentage of time spent on each job duty. The DOL also expands the definition of "employer" in PERM regulations to determine when the employee obtained prior experience with the petitioning employer. The new rule defines "employer" as an “entity with the same Federal Employer Identification Number” as the petitioning employer. In the past, experience obtained with one of the employer’s overseas branches or with a company later acquired by the employer could often not be used as qualifying experience for a labor certification application. Under new PERM regulations, this experience may be considered. Of course, if a foreign national employee gained experience with a separate corporate entity from the petitioning employer, then that experience may be used to demonstrate that the foreign national qualifies for the labor certification position. |
|
| Alien Influence and
Control Over Job Opportunity |
|
| The Form ETA 9089
specifically asks whether the employer is a closely held corporation,
partnership, or sole proprietorship in which the foreign worker has an
ownership interest. The form also asks if the foreign worker has a
familial relationship with any of the owners, stockholders, partners or
corporate officers, or incorporators. Presumably answering "yes" to
these questions would result in further inquiries into corporate
structure; names and titles of corporate officers and their
relationships to the foreign worker; the financial history of the
company, including total investment of each owner; and names of
individual(s) responsible for interviewing and hiring job applicants. |
|
| Layoffs | |
| In the Form ETA 9089,
an employer must state whether there have been any U.S. workers laid
off during the prior six months in the area of intended employment. A
lay off is defined as “any involuntary separation of one or more
workers without cause or prejudice” and includes reductions in force,
restructuring, and downsizing. An employer that has experienced such
layoffs must notify and consider the potentially qualified former U.S.
employees. These actions, along with the lawful reasons for not hiring
the laid off workers, must be documented. |
|
| Schedule
A I-140 Filings |
|
| Employers can still
file Schedule A applications with USCIS as part of the I-140 Immigrant
Visa Petition process, but there are some changes in the type of notice
that must be provided. The application must contain the Form ETA 9089,
a prevailing wage determination, and a posting notice. In
addition, the employer must use any in-house media that might normally
be used for recruitment of similar positions in the company. The
required notice must be provided no less than 30 days and no more than
180 days prior to filing the I-140 position. The PERM regulations make another substantive change to the requirements for professional nurses seeking Schedule A certification. In the past, nurses needed only to show that they had passed the CGFNS examination. Under the new regulations, nurses must present full CGFNS certification. This is an important change because nurses need to pass an English language examination and await a review of their educational credentials before obtaining full CGFNS certification. This change adds several months to the pre-filing preparation required for nurses. Nurses may also qualify for Schedule A certification by showing that they possess a full and unrestricted nursing license in the state of intended employment or that they have passed the NCLEX-RN examination. |
|
| How can the Law
Offices of Richard S. Bromberg help you? |
|
| The PERM process is
complicated and time consuming, and employers should hire an
experienced attorney for guidance. The attorneys at the Law Offices of
Richard S. Bromberg can help employers navigate the new PERM
regulations and recruitment procedures for professional and
non-professional positions. Call today to schedule a consultation. |
|
| Further
Sources of Information |
|
| Department of Labor:
Permanent Labor Certification http://www.workforcesecurity.doleta.gov/foreign/perm Permanent On-Line System http://www.plc.doleta.gov/eta_start.cfm |
|
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