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Labor Certification

How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically?

According to the Labor Department:

As explained in an earlier FAQ on this subject, if the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing following the procedure below, must be sent to the National Processing Center to which the application was originally submitted.

In the event employers are unable to withdraw electronically as stated above, employers should send a withdrawal request by e-mail to the appropriate National Processing Center at: PLC.Chicago@dol.gov (for Chicago) or PLC.Atlanta@dol.gov (for Atlanta). To ensure your request is processed expeditiously, please include the following information in the e-mail request:

  • Show the words "Withdrawal Request" and the employer’s name in the subject line of the e-mail
  • In the body of the e-mail, include the following information:
    • Case Number
    • Employer's Name
    • Employer's EIN
    • The reason for withdrawal
    • Name and title of individual requesting withdrawal

Posting notices of filing for college and university teachers after the selection process has been completed

Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

According to the Labor Department:

Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

Using the posting sample of a Notice of Filing issued by the USCIS

The United States Citizenship and Immigration Services (USCIS) has posted, or will soon post, a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

According to the Labor Department:

Yes, an employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing complies with all Department of Labor regulatory requirements. DOL worked with USCIS to develop the sample posting as a customer service convenience. DOL will honor the use of the sample, but is not requiring use of the sample. Employers may use other forms as long as they comply with the regulations.

Does the alien beneficiary need to have a bachelor's or higher degree to qualify for a professional occupation?

According to the Labor Department:

No, the alien does not need to have a bachelor's or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employer's willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.

Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?

According to the Labor Department:

Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.

What are the criteria for an acceptable employer-provided survey?

According to the Labor Department:

The State Workforce Agency will make a determination on the acceptability of the employer-provided survey based on the provisions in §§ 656.40(g)(2) and (3).

How can a pending application filed under PERM be withdrawn?

According to the Labor Department:

If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.

What is meant by "contract employee" under the employer's actual minimum requirements provision?

According to the Labor Department:

For purposes of the actual minimum requirements provision, the term "contract employee" is intended to include all persons contracted to work for the employer. The broad use of the term under the actual minimum requirements provision is intended to ensure the provision applies to experience gained working for the employer by the alien, whatever the alien's employment status.

Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if...

Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

According to the Labor Department:

No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

Should the employer seek the info required regarding the placement of job orders from SWA in the area of intended employment?

Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?

According to the Labor Department:

Yes, the employer should seek any information required regarding job orders from the SWA. If an employer is not clear on how to place a job order, the employer should check with the SWA responsible for the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA's rules and regulations. In other words, SWAs place labor certification job orders the same way they place any other job order.

If an employer wanted to refile an RIR conversion application, what date would be considered the original filing date?

In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

According to the Labor Department:

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

Should I use the procedure described here if I have already heard from the BEC that my case was closed, or have another ...

Should I use the procedure described here if I have already heard from the BEC that my case was closed, or have another question about a case?

According to the Labor Department:

No. This process is only for cases about which the employer or their attorney has not heard from the BEC about the case at all. If you believe your case was closed in error due to non-receipt or non-response to a 45-day letter, you should send your request to the BEC where the closed cased was pending, the Dallas BEC at reopenrequest@dal.dflc.us or the Philadelphia BEC at reopenrequest@phi.dflc.us.

If you have another question about a case, it should go to the general information box at info@dal.dflc.us for the Dallas BEC or at info@phi.dflc.us for the Philadelphia BEC.

What address must the employer provide on the posted notice of filing?

According to the Labor Department:

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

Must job duties and requirements be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

According to the Labor Department:

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

What options are available to an employer who disagrees with the State Workforce Agency (SWA) prevailing wage determination?

According to the Labor Department:

If the employer disagrees with the skill level assigned to its job opportunity, or if the SWA informs the employer its survey is not acceptable, or if there are other legitimate bases for such a review, the employer is afforded one opportunity to provide supplemental information to the SWA. Additionally, the employer may choose to file a new request for a wage determination or request review by the Certifying Officer.

What additional documentation may the employer provide to the Certifying Officer...

According to the Labor Department:

What additional documentation may the employer provide to the Certifying Officer when requesting a review of the prevailing wage?

The single opportunity to submit supplemental information to the State Workforce Agency represents the employer's only opportunity beyond the initial filing to include materials in the record that will be before the Certifying Officer in the event of an employer request for review under § 656.41. The appeal stage of the process is not intended to serve as an avenue for the employer to submit new materials relating to a prevailing wage determination.

Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of...

Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?

According to the Labor Department:

Yes, the passage of the examination alone is not acceptable; the alien is required to have a CGFNS Certificate. A CGFNS Certificate documents that, in addition to having passed the nursing skills examination, the alien has demonstrated English language proficiency and CGFNS has made a favorable evaluation of the individual's nursing credentials.

How can the employer ensure that no unauthorized use of the employer's PIN and/or usernames and passwords exists?

How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?

According to the Labor Department:

The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.

NOTE: The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

Must the employer request a prevailing wage from a State Workforce Agency (SWA) if a Collective Bargaining Agreement exists...

Must the employer request a prevailing wage from a State Workforce Agency (SWA) if a Collective Bargaining Agreement exists or the employer is choosing to use a Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage?

According to the Labor Department:

Yes, the employer must always request a prevailing wage from the SWA having jurisdiction over the proposed area of intended employment. The SWA is responsible for evaluating whether the wage source chosen by the employer is applicable and/or acceptable.

Are all cases filed between 1/1/05 and 3/28/05 to be processed by the BPC rather than the Atlanta or Chicago Processing Centers?

According to the Labor Department:

All cases filed between 1/1/05 and postmarked before 3/28/05 will be processed by the Backlog Processing Centers.

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You can search for "H1B Visa Employers" using this database, which was compiled by Antao & Chuang, Attorneys at Law from government sources. This database identifies those U.S. employers who have filed for H-1B visas in the past, or who have at least started the process by filing for the LCA. If you find an employer you are interested in, you can then contact them to inquire as to whether they have any current job openings in your field. Please tell your friends about this valuable resource.

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Foreign Medical Graduates ("FMGs") should be aware that there are "FMG Friendly" employers, and "FMG Unfriendly" employers. This database (compiled by Antao & Chuang, Attorneys at Law from government sources) identifies those U.S. employers who have filed for H-1B visas for foreign medical graduates in the past (or at least started the process by filing for the LCA), and who can therefore be deemed "FMG Friendly". Please tell your colleagues about this valuable resource.

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