Re-engineered Permanent Labor Certification Program (PERM)

1
Re-engineered Permanent Labor Certification
Program (PERM)
Effective March 28, 2005
2
History and Background

• A labor certification is required prior to
  petitioning USCIS for permanent residence (green
  card) for certain employment-based immigrant
  visas
• DOL certifies
• not sufficient U.S. workers
• no adverse effect on U.S. workers
• Application certified or denied by DOL

3
History and Background (continued)

• Previous process criticized as
• complex
• time consuming
• resource intensive
• duplicative
• New system streamlines process

4
History and Background (continued)

• NPRM on May 6, 2002
• Approximately 200 comments
• Approximately 1,100 pages of comments
• Final regulation responsive to public comments
• Final rule published on December 27, 2004
• Regulation effective March 28, 2005

5
Highlights of Re-engineered Program

• Employers must conduct recruitment before filing
  applications
• SWAs provide prevailing wage determinations, but
  will no longer accept or process permanent
  applications once the regulation is effective
• Employers have the option of web-based filing
• Must offer at least 100 of the prevailing wage
• Employer retains supporting documentation for
  audit purposes for five (5) years
• Business necessity included in final rule

6
General Instructions

• Representation by agents or attorneys allowed
• Filing options (ETA Form 9089)
• mail-in
• web-based
• No facsimile (fax) applications
• Pin/Password process for e-filing

7
General Instructions (continued)

• Applications will be processed in either the
  Chicago or Atlanta National Processing Center
  based upon work state
• Incomplete applications will not be accepted or,
  in the case of paper applications, will be denied

8
Basic Permanent Labor Certification Process
9
Filing Date Re-filing of Pending Cases

• Date stamping of applications accepted for
  processing
• Re-filing applications under the final rule
• must meet final rule recruitment requirements
• must be identical application
• current application must be withdrawn
• re-file is considered a withdrawal
• withdrawal allowed prior to re-filing, must
  re-file within 210 days
• re-filed applications may take longer to
  process than other ETA Form 9089s

10
Pre-filing Recruitment

• Separate Professional and Nonprofessional
  occupation recruitment requirements
• Professional occupations are listed in Appendix A
  to the Preamble
• All occupations not listed in Appendix A to the
  Preamble are considered non-professional for
  purposes of this recruitment

11
Pre-filing Recruitment (continued)

• Placement of job order with SWA
• Two Sunday newspaper advertisements
  professional journal optional in certain cases
• Additional recruitment steps for professional
  occupations

12
Contents of Advertisements

• Employer name
• Wage rate (optional)
• Description of vacancy and geographic area of
  employment

13
Job Opportunity

• Business necessity available
• No foreign language requirement, unless justified
  by business necessity
• Combination occupations permitted when justified
• Alternative experience requirements permitted

14
Job Opportunity (cont.)

• Job requirements must represent employers actual
  minimum requirements
• Aliens background must satisfy actual minimum
  requirements
• Aliens qualifying experience cannot be gained
  with the employer, except in limited
  circumstances
• Definition of employer determined by EIN

15
Other Requirements

• Notification to laid-off U.S. workers by the
  employer applicant
• Prohibition against alien influence and control
  over job opportunity

16
Recruitment Report

• Recruitment steps undertaken
• Results achieved and lawful reasons for rejection
  of U.S. workers, as applicable
• Maintain resumes/application materials for
  documentation/audit purposes (5 years)

17
Specific Occupations
18
Schedule A Occupations

• Physical therapists
• Professional nurses
• Aliens of exceptional ability in the sciences or
  arts
• Performing artists of exceptional ability
  previously special handling

19
Other Occupations

• Labor certification requirements for sheepherders
  direct to USCIS
• Optional recruitment and documentation for
  college and university teachers alternative
  recruitment
• Live-in household domestic service workers
  additional documentation required

20
Permanent Labor CertificationCase Processing
21
Bona Fides

• Employer existence
• Sponsorship
• Publicly available databases

22
Audit Letters

• Based on
• review of application
• selection for quality control purposes
• Required documentation based upon the particulars
  of the application some will be requested by
  the audit letter
• 30-day response time for submittal of application
  documentation one extension at COs discretion
• CO may ask for additional information
• Failure to comply, application denied and future
  applications audited
• Application may be denied after review of
  supplied documents

23
Supervised Recruitment Directed by Certifying
Officer

• Advertising requirements for the job opportunity
• Detailed written recruitment report
• 30-day response time

24
Labor Certification Determinations by Certifying
Officer

• Application either certified or denied
• Final notification to employers in writing
• Possibility of supervised recruitment up to two
  years
• Employer request for reconsideration or review
  within 30 days

25
BALCA Review of Denials

• Request by employer to denying CO by certified
  mail
• Assembly of appeal file by certifying officer
• sent to BALCA
• copy to employer

26
Consideration by and Decisions of BALCA

• Briefs and Statements of Position within 30 days
• Notification of decision
• Hearings notification and procedure
• No remands
• Review on the record

27
Substitutions and Invalidations of Labor
Certifications

• After issuance, subject to invalidation for fraud
  or willful misrepresentation
• Substitution of alien beneficiaries
• Issuance of duplicate certifications

28
Fraud or Willful Misrepresentation in
Certification Applications

• If possible fraud discovered before
  certification, referred to USCIS, DOL Inspector
  General, etc.
• If subject to judicial process, application
  processing halted
• If fraud found, application invalidated and
  processing terminated
• 90-day notification period

29
Revocation of Approved Labor Certifications

• Basis - Certifying Officer finds certification
  was not justified
• Employer receives notice of intent to revoke

30
Prevailing Wage Determination Process for
Permanent Labor Certification Purposes
31
Process for Obtaining a Prevailing Wage
Determination

• Request prevailing wage determination from SWA
  serving area of intended employment on their form
• Validity period 90 days to 1 year from
  determination date
• Employers must file their applications or begin
  recruitment within the validity period specified
  by the SWA

32
Process for Obtaining a Prevailing Wage
(continued)

• SWA determination sources
• CBA when appropriate
• employer provided survey
• must meet all requirements listed in the
  regulations
• median acceptable if no mean
• DBA and SCA may be utilized by employers no
  longer mandatory
• OES
• Guidance forthcoming on 4 wage levels
• The SWA must consider one supplemental submission
  concerning the wage determination

33
Prevailing Wage Review

• Request from employer within 30 days of the
  determination by the SWA
• CO reviews determination based on the record
• Employer may request BALCA review of CO
  determination within 30 days of the date of the
  decision

34
Application for Permanent Employment
Certification
35
Form ETA 9089 (pg. 1)
36
Form ETA 9089 (pg. 2)
37
Form ETA 9089 (pg. 3)
38
Form ETA 9089 (pg. 4)
39
Form ETA 9089 (pg. 5)
40
Form ETA 9089 (pg. 6)
41
Form ETA 9089 (pg. 7)
42
Form ETA 9089 (pg. 8)
43
Form ETA 9089 (pg. 9)
44
Form ETA 9089 (pg. 10)
45
Address and Contact Information

• Employment and Training Administration
• Office of National Programs
• Division of Foreign Labor Certification
• 200 Constitution Ave., NW C-4312
• Washington, DC 20210
• DFLC website http//www.ows.doleta.gov/foreign/
  or http//www.workforcesecurity.doleta.gov/foreign
  /
• Send questions to PERM.DFLC_at_dol.gov