PERM

Is the employer permitted to accept an equivalent foreign degree?

JSA — Mon, 12 Mar 2007 08:20:01 -0400

According to the Labor Department:

Yes, the employer may accept an equivalent foreign degree. However, the employer's willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.

When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals ...

JSA — Sun, 11 Mar 2007 08:20:02 -0400

When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?

According to the Labor Department:

The Department of Labor considers a request for review to be pending with BALCA under 20 CFR 656.24(e)(6) at the time either a request for BALCA review or a request for reconsideration is submitted to the Certifying Officer.

When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?

JSA — Sat, 10 Mar 2007 07:20:02 -0500

According to the Labor Department:

If an employer provided survey acceptable under § 656.40(g) provides only a median and not an arithmetic mean, use of the median is permitted.

Is there a time limitation for revocations?

JSA — Fri, 09 Mar 2007 07:20:01 -0500

According to the Labor Department:

No, a time limit has not been imposed on the authority of Certifying Officers to revoke labor certifications.

Can a parent company create sub-accounts for each subsidiary to assume responsibility for its own filings?

JSA — Thu, 08 Mar 2007 07:20:02 -0500

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?

According to the Labor Department:

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.

Can mailing in a labor certification application prove more successful than electronically submitting an application on-line?

JSA — Wed, 07 Mar 2007 07:20:01 -0500

Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?

According to the Labor Department:

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.

Who may make the request regarding a "no contact" case?

JSA — Tue, 06 Mar 2007 07:20:02 -0500

According to the Labor Department:

Only the employer or attorney of record may make the request. A request from an alien will not be addressed.

Listing and explanation of the status indicators that appear on the website for electronically filed applications

JSA — Mon, 05 Mar 2007 07:20:02 -0500

For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.

According to the Labor Department:

The status indicators for an application filed on-line are as follows:

Incomplete

A case number preceded by a "T" indicates that the application has not been formally "filed" by the employer or its agent, i.e., electronically submitted, and is still a temporary draft. When an application is electronically submitted to a National Processing Center, the "T" changes to either a "C" or "A" depending on whether the application is submitted to the Chicago or Atlanta National Processing Center, respectively.

In process

An "in process" status indicates the application is in the process of moving through the DOL's certification process. If the application is in a stage of review requiring further information/documentation from the employer, the employer will be notified.

Withdrawn

A "withdrawn" status indicates the employer has withdrawn the application.

Denied

A "denied" status indicates the application is denied. A Final Determination form, stating the reasons for the determination and advising the employer of how to request review, should the employer choose to do so, will be sent to the employer. The Final Determination must be included in any request for review, therefore, the employer must wait to receive the form before making such a request. The employer is also advised to wait for the Final Determination before filing a new application for the same alien to avoid repeating errors made in the original application.

Appeal

An "appeal" status indicates the application is under reconsideration and/or review and is considered "in process." No new application for the same alien can be filed while an application is in a reconsideration and/or review queue.

Certified

A "certified" status indicates the labor certification is granted. The certified application and a complete Final Determination form will be sent to the employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file all the documents with the appropriate office in the Department of Homeland Security (DHS).

When advertising for a professional occupation, must the required steps be different?

JSA — Sun, 04 Mar 2007 07:20:02 -0500

When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?

According to the Labor Department:

Generally, all the required steps must be different. Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional "trade or professional organizations" recruitment step, or count the job order again as an additional "web site other than the employer's" step.

The message on my Corrections List states, "Basic Rate Per is a required entry." The amount of pay is included on the ...

JSA — Sat, 03 Mar 2007 07:20:02 -0500

The message on my Corrections List states, "Basic Rate Per is a required entry." The amount of pay is included on the application. What's the problem?

According to the Labor Department:

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). Please correct, initial, and date your application accordingly and return the application to the appropriate Backlog Processing Center.

Does the job location address need to be included in the advertisement?

JSA — Fri, 02 Mar 2007 07:20:01 -0500

According to the Labor Department:

No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site (e.g., company headquarters in another state) or if the employer has multiple job sites.

Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?

JSA — Thu, 01 Mar 2007 07:20:01 -0500

According to the Labor Department:

No, while the majority of the recruitment must take place within the 30 - 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.

Our office recently received a request for "corporate documents" from the BPC. The petition was for a housekeeper. Is this...

JSA — Wed, 28 Feb 2007 07:20:01 -0500

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?

According to the Labor Department:

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.

What forms or documents must the employer include in an application?

JSA — Tue, 27 Feb 2007 07:20:02 -0500

According to the Labor Department:

The employer must file a completed Application for Permanent Employment Certification, ETA Form 9089.

Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

BALCA rules that an employer must state at the BEGINNING of the LABOR CERTIFICATION process if it has MULTIPLE OPENINGS.

RSA — Mon, 26 Feb 2007 07:20:01 -0500

On 10/17/06, the U.S. Department of Labor's Board of Alien Labor Certification Appeals (BALCA) issued a ruling in a case, Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06), in which it addressed the circumstances under which an employer can claim that it actually had MULTIPLE OPENINGS.

In the Labor Certification process, an employer must show that there are no U.S. workers available to fill a particular position. Sometimes, an employer will hire a U.S. worker as part of the Labor Certification recruitment, and will then argue that there were actual multiple openings available with the employer so the fact that one U.S. worker was hired did not fill the employer's multiple openings. In the case of Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06), the employer made that very argument.

The certifying officer denied the employer's labor certification appeal, and on appeal, BALCA addressed the circumstances under which an employer can claim multiple openings and successfully obtain a labor certification after hiring U.S. worker. BALCA ruled against the particular employer in the case, affirming the certifying officer, reasoning that the particular employer had NOT stated from the beginning of the labor certification case that it had multiple openings. BALCA ruled:

While the Employer contends that multiple job openings existed, the record is devoid of any evidence that, in fact, more than one opening existed. The ETA Form 750A and the advertisements set forth the position of "Landscaper/Gardener" and not "Landscapers/Gardeners" which would imply the existence of only one position. (AF 26-27 and 67-69). It was not until after the hiring of the U.S. worker and the proposed denial of certification by the CO that the Employer stated, in its Rebuttal, that multiple job openings existed.

The Employer argued that a job opening still existed and that the fact that there was a single labor certification pending with the Department of Labor did not prohibit the Employer from utilizing other methods of recruiting for other vacancies. (AF 16). It is the Employer’s responsibility, however, to state explicitly, at the initiation of the application procedure and throughout the certification process, that it seeks more than one worker for the position. Precision Airparts Support Services, Inc., 1988-INA-508 (Feb. 8, 1990).

Matter of Custom Landscape Construction, Case No. 2005-INA-181 (10/17/06). A copy of the opinion is attached in PDF format.

Attachment	Size
CUSTOMLANDSCAPEvCONRADO.pdf	184.43 KB

Having more than one labor certification application actively in process for the same alien for the same job opportunity

JSA — Sun, 25 Feb 2007 07:20:02 -0500

Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same alien for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same alien for the same job opportunity?

According to the Labor Department:

Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same alien involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same alien and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

In the months since the PERM regulation's streamlined procedures for filing and processing of permanent labor certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications for the same alien and same job opportunity. In some cases, the multiple applications are identical in all respects and may have been the result of inadvertently repeating the "submit" function. In other cases, the applications differ in minor respects, such as answering questions regarding job requirements differently or varying in descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system's responsiveness and auditing criteria.

DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent Employment Certification, in process under the PERM regulation for the same alien beneficiary for the same job opportunity at any given time.

Recognizing that multiple filings are already in the PERM queue for the same employer, alien and job opportunity, we have developed the following procedures to transition in implementation of this policy to PERM:

If an employer currently has multiple applications in process under PERM for the same alien and job opportunity, the employer must withdraw, by January 19, 2006, all applications other than the one it wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)

As of January 19, 2006, if multiple applications from an employer for the same alien and same job opportunity are still pending under PERM, we will assume that the employer wishes the last-filed application to be processed (since this presumably includes any corrections or clarifications from earlier filings) and the other pending PERM applications for the same alien/job opportunity will be denied.

After January 19, 2006, if an application for a particular employer/alien/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/alien/job opportunity, we will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same alien and job opportunity, the employer should not file the new PERM application until the employer formally withdraws the PERM application currently in process or the employer has received the Final Determination form notifying the employer that the previous application is denied. NOTE: An employer may not file a new application for an alien while a request for review is pending with the Board of Alien Labor Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See 20 CFR 656.24(e)(6).

DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL will continue to process and certify multiple permanent labor certification applications filed under the prior regulation for the same alien if the employer is proposing to employ the alien in multiple different bona fide job openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed under the prior regulation for the same alien, employer, and job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

If a BEC identifies multiple pending applications for the same employer, job opportunity, and alien, the BEC will issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which application contains the bona fide job opportunity. Should an employer currently have multiple applications pending at a BEC for the same employer, job opportunity, and alien, the employer may take the initiative and notify the BEC as to which application it wishes to have processed and withdraw all other applications.

This FAQ does not address the situation in which an application for the same employer, alien and job opportunity is pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.

When is PERM effective and must the employer wait until the effective date to begin recruitment?

JSA — Sat, 24 Feb 2007 07:20:02 -0500

According to the Labor Department:

PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date.

If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.

Does the original application need to be withdrawn to request RIR conversion?

JSA — Fri, 23 Feb 2007 07:20:01 -0500

According to the Labor Department:

No, simply send the request and appropriate documentation to the BEC as described above.

Does the 24-30 month processing projection apply to both RIR and TR cases or will the RIR queue get some preference?

JSA — Thu, 22 Feb 2007 07:20:01 -0500

According to the Labor Department:

No queue will automatically get preference. We plan to allocate resources based on the number of cases in each queue. However, we anticipate that the processing time for RIR cases will be shorter that that for TR cases.

If an application is for a college or university teacher who does not qualify as a college or university teacher ...

JSA — Wed, 21 Feb 2007 07:20:02 -0500

If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?

According to the Labor Department:

Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, § 656.18, or under the provision for the basic process, § 656.17.