Labor Certification (PERM)

On December 27, 2004, the Department of Labor (DOL) published regulations creating a new program known as “PERM.” The regulations took effect on March 28, 2005. This article highlights some of the more significant changes created by the introduction of PERM.

PERM is a process to test the US marketplace to determine whether there exists a shortage of willing and qualified US workers to fill a job opportunity. If the employer establishes through PERM recruitment that it cannot find a qualified US worker, the position may be filled with a foreign worker. The regulations require the employer to state only its minimum credentials while advertising the position during recruitment. DOL has very specific regulations identifying the parameters of what constitutes “minimum credentials.” If the employer wants to exceed these minimum credential parameters set forth by DOL, then it may be required to explain its rationale during an audit of the file through presentation of a “business necessity” letter.

The goal of PERM is to adjudicate applications within a 45-60 day time frame although currently it takes as much as 6-12 months for DOL adjudication. It involves the use of on-line submission, which results in the streamlining of the labor certification process.

Prevailing Wage

The wage required for beneficiaries of approved labor certifications in PERM is either the wage determined by union agreement or 100% of the prevailing wage, which is a change from the old regulation that allowed employers to offer 95% of the prevailing wage. The good news is that the regulations required that DOL develop a 4 level wage survey, which results in a more realistic wage determination than we have seen in recent years. Employers must seek prevailing wage determinations from the State Workforce Agency if there is no union agreement, although the employer can suggest the use of private surveys, as long as the latter comply with regulations regarding methodology, geographic scope, and age of the survey. The prevailing wage must be paid either from the time permanent resident status is granted or from the time the alien is admitted to the United States as an immigrant to take up the certified employment. However, as always, the employer must be able to demonstrate that it has the ability to pay the wage from the date the PERM application is filed.

Internal Job Posting

As part of the recruitment process, the regulations require the employer to post notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days prior to filing. Additionally, the new regulations require that the employer also post through its electronic or printed in-house media in accordance with normal recruitment procedures (so if electronic or printed notification in-house is the norm, we need to do that too).

State Job Order

The employer must place a job order with the State Workforce Agency (SWA) for a period of 30 days, which is a recruitment process not normally utilized in most recently filed labor certification applications (especially RIR applications).

Recruitment Requirements

PERM regulations also created an acceptable methodology to be used for recruitment. The regulations mandate that the employer place two advertisements on two different Sundays in the area of intended employment. The ad must be sufficiently detailed to inform applicants of the nature of the job and its location. The most far-reaching changes found in the PERM regulations concern the procedure for recruitment of professional positions. Employers are required to place ads in 3 other forums in addition to the 2 Sunday ads. The list of permitted recruitment sources include: (1) job fairs; (2) employer’s web site; (3) job search web site other than employer’s; (4) on-campus recruiting; (5) trade or professional organizations; or (6) private employment firms. (7) an employee referral program, if it includes identifiable incentives; (8) a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) radio and television advertisements. A professional job is a job for which the attainment of a bachelor’s or higher degree is the usual educational requirement. DOL has published a list of professional occupations in its Appendix A, attached to the PERM regulation.

Recruitment Report

At the end of recruitment, the employer must prepare a Recruitment Report that describes the recruitment steps taken and the results. The regulations state the employer must identify its minimum credential requirements and explain why US applicants lack those skills identified. Additionally, the regulations do not allow employers to reject US workers based upon skill that may be acquired during a reasonable period of on-the-job training. Records from recruitment, including resumes and applications, must be retained for five years by the employer from date of filing in case of audit by DOL.

Audits & Supervised Recruitment

DOL may audit submitted applications based on its review of the application or as a result of random sampling. The audit letter will request documentation or additional information regarding the recruitment effort, which may include resumes and business necessity letters regarding any unusual job duties. Additionally, where DOL determines appropriate, supervised post-filing recruitment may be required of the employer. Post-filing recruitment shall consist of advertising for the job opportunity in a manner chosen by DOL, which directs applicants to send resumes to DOL for referral to the employer, followed by a specific recruitment report detailing each recruitment source by name and providing lawful job-related reasons for not hiring other applicants for the position. The PERM regulations state that an employer may not lawfully reject U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers could acquire such skills during a reasonable period of on-the-job training. The employer’s response to the audit is due within 30 days from the date of the audit letter. Because the period allowed for a response is very short, we recommend that all of the documentation that might be necessary for an audit (e.g. recruitment report, business necessity letter for any special requirements, etc.) be prepared prior to filing the application. The PERM regulations do not impose upon DOL any specific time frame in which it must adjudicate applications subjected to an audit or supervised recruitment.

Special Handling for College/University Professors

PERM contains procedures for processing of certain category of cases that are distinguishable from the general rules described above. “Special Handling” for college and university professors has been retained from the old regulations. The Special Handling process allows professors and teachers to file their labor certification applications based upon recruitment that shows the alien was found to be more qualified than U.S. workers who applied. The “special handling” application must be made within 18 months of the offer made by the university or college to the foreign applicant.

Schedule A – Nurses/Physical Therapists

The PERM regulations also allow employers to continue to file Schedule A applications directly with the Department of Homeland Security (DHS) as part of the I-140 petition process. This is good news for professional nurses and physical therapists, since they traditionally benefited from the presumption found in Schedule A that there exists a shortage of US workers. Professional nurses may 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).

Appeals

If the labor certification application is denied or revoked, the Employer may make a request for review of the denial or the revocation to the Board of Alien Labor Certification Appeals (BALCA).

Approval of Labor Certification

If the PERM application has been “approved by DOL, two additional steps remain. Upon approval of the application, an immigrant petition for alien worker is filed with USCIS. The immigrant visa petition establishes the financial viability of the company and provides the USCIS with proof that the PERM beneficiary is qualified for the position offered. It is at this stage that the PERM beneficiary provides documentation establishing their experience and educational qualification. Also, the employer must prove through tax records [for a large company a CFO letter will do] that the company had the financial ability to pay the prevailing wage from the date the PERM application was filed. The immigrant visa petition also establishes visa category eligibility out of one of the five visa categories available. The second step varies in processing time from but normally takes around 10-12 months although there is some variance in different areas of the country. In many cases, the second and third step, which is the actual application for permanent resident status, are combined in what is called “concurrent” filing. The right to file concurrently is often determined by the visa category and whether its quota is filled for the fiscal year. In some visa categories you can anticipate delays that may last many years. If the quota is not filled, the PERM beneficiary is eligible for permanent resident status immediately through a “concurrent” filing. This latter step, whether filed concurrently or not, has recently taken from 8-24 months. However, during that period employment authorization and advance parole are normally available to the applicant until such time that permanent resident status is granted.