PERM

Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?

According to the Labor Department:

No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

According to the Labor Department:

The employer must file, as part of its labor certification application, documentation the alien meets one of three requirements: the alien has a Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate, the alien has passed the National Council Licensure Examination for Registered Nurses (NCLEX—RN) exam, or the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment.

NOTE: Unlike the filing requirements under other PERM provisions, for Schedule A occupations, the employer is required to submit the applicable documentation when the employer files the application with the appropriate Department of Homeland Security office.

According to the Labor Department:

Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of aliens in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the alien's qualifications meet the provision's requirements.

According to the Labor Department:

If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

According to the Labor Department:

Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to a National Processing Center.

According to the Labor Department:

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

According to the Labor Department:

The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency, which will range from no less than 90 days to no more than one year from the determination date.

In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?

According to the Labor Department:

We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.

For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?

According to the Labor Department:

For purposes of determining whether the alien gained experience with the employer, an employer is "an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at § 656.3."

According to the Labor Department:

If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?

According to the Labor Department:

Yes, the employer must provide a notice of filing which must include the advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?

According to the Labor Department:

Aliens of exceptional ability in the performing arts are now included in § 656.5, Schedule A, under Group II. Accordingly, such applications must be filed in duplicate with the appropriate office of the Department of Homeland Security. The documentation that must be filed in support of such applications is listed in § 656.15, Applications for labor certification for Schedule A occupations.

According to the Labor Department:

Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.

According to the Labor Department:

No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.

According to the Labor Department:

The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity.

NOTE: The Certifying Officer, after reviewing the employer’s recruitment report, may request the U.S. workers' resumes or applications, sorted by the lawful job related reasons the workers were rejected.

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

According to the Labor Department:

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process.

According to the Labor Department:

Under § 656.31(a), Department of Labor processing of an application, including audit procedures, may be suspended in certain circumstances. Specifically; "If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the Department of Homeland Security (DHS) for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General (DOL OIG). If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application."

Standards/ Major Differences

As of October 27, 2006, the Labor Department (DOL) is still accepting conversions of traditional Labor Certification cases (non-PERM) to Reduction in Recruitment (RIR), PROVIDED that the job order has NOT yet been placed for the traditional case. If an RIR conversion is received by DOL with a postmark or express courier shipping date that is prior the date DOL places the job order, DOL will accpet the RIR conversion and cancel the job order.

Of course, petitioners may wish to consider converting the case to PERM instead.

According to the Labor Department:

The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.