Permanent Residency

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.

According to the Labor Department:

Yes, a prevailing wage determination has a limited validity period as specified by the State Workforce Agency (SWA), which may range from no less than 90 days to no more than one year from the determination date.

NOTE: To use a SWA prevailing wage determination, the employer must file its application or begin the recruitment required within the validity period specified by the SWA.

According to the Labor Department:

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

Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) even if the employer is filing an application under the optional recruitment for college and university teachers and/or Schedule A provisions?

According to the Labor Department:

Yes, a prevailing wage determination must be obtained from the SWA even if the employer is filing an application under the optional recruitment for college and university teachers and/or the Schedule A provisions.

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.

Is the employer permitted to request a review by the Certifying Officer of a State Workforce Agency (SWA) prevailing wage determination?

According to the Labor Department:

Yes, the employer may request a review by the Certifying Officer of a SWA prevailing wage determination by sending a request for review to the SWA that issued the prevailing wage determination within 30 days of the date of the determination

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.

According to the Labor Department:

Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same alien cannot be filed. See 20 CFR 656.24(e)(6). (For more information, please see the FAQ "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:

If the alien beneficiary already is employed by the employer, the employer can not require U.S. applicants to possess training and/or experience beyond what the alien possessed at the time of initial hire by the employer, including as a contract employee: (1) unless the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or (2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

NOTE: A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time.

Performing Arts

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.

Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?

According to the Labor Department:

Questions regarding audit criteria will not be addressed. The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the program's integrity.

According to the Labor Department:

Yes, the employer is permitted to request a review by the Board of Alien Labor Certification of the Certifying Officer's prevailing wage determination by submitting, in writing and within 30 days of the date of the decision of the Certifying Officer, a request to the Certifying Officer who made the determination.

According to the Labor Department:

This is a brief list of some of the changes; they are covered in greater detail in the particular topic areas below.

• Filing: Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center.
• Filing: Supporting documentation is not submitted with the application.
• Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).
• Refiling: An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.
• Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.
• Prevailing Wage:Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.
• Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.
• Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days.
• Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing.

Job Order

PERM is the new Labor Certification for the Permanent Employment of Aliens in the U.S. 

Notice Of Filing

Certification

According to the Labor Department:

Yes, an employer may post a Notice of Filing indefinitely, provided that at the time of filing the permanent labor certification application, the Notice of Filing was posted for at least 10 consecutive business days and those 10 consecutive business days all fell within 30 to 180 days prior to filing the application. In addition, the Notice of Filing must contain the correct prevailing wage information, the correct job description and must comply with all other Department of Labor regulatory requirements.

According to the Labor Department:

No, the employer’s physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes clear where the work will be performed.