PERM

DOL still accepts some Reduction in Recruitment (RIR) Conversions for traditional LABOR CERTIFICATION cases.

RSA — Tue, 25 Sep 2007 07:20:02 -0400

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.

Is there a date before which an employer or their agent must send a request for RIR conversion to the BEC?

JSA — Tue, 09 Jan 2007 07:20:01 -0500

According to the Labor Department:

There is no specific date by which an employer or their agent may request RIR conversion. However, by regulation, once the BEC has posted the job order to begin the recruitment process, the application is no longer eligible for RIR conversion. Since applications are processed by filing date, recruitment for TR applications is begun on a rolling basis based on priority date as cases are processed. Therefore, it is to the advantage of an employer who would like to request an RIR conversion to do so as soon as possible to minimize the possibility that the BEC begins recruitment on the application.

When will I receive my 45-day letter?

JSA — Mon, 08 Jan 2007 07:20:01 -0500

According to the Labor Department:

Due to the large volume of files transferred to the two Backlog Processing Centers, we cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center. In the designated space at the bottom of the Selection of Continuation Option Letter, please indicate your decision as to whether "I wish to withdraw this application" or "I wish to continue the processing of this application" with a check mark.

When is the employer permitted to provide an alternate wage source?

JSA — Sun, 07 Jan 2007 07:20:01 -0500

According to the Labor Department:

Unless the job opportunity for which certification is sought is covered by a Collective Bargaining Agreement or professional sports league's rules or regulations, the employer may request the State Workforce Agency use an employer-provided survey, or Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage rate, if appropriate.

What should I do if I do not have a case number because I never received a 45-day letter or any correspondence from a Backlog...

JSA — Sat, 06 Jan 2007 07:20:01 -0500

What should I do if I do not have a case number because I never received a 45-day letter or any correspondence from a Backlog Elimination Center (BEC)?

According to the Labor Department:

Please see the procedure regarding "No BEC Contact" here: backlog_faqs_09-11-06_nobec.pdf (PDF, 47K)

What is invalidation?

JSA — Fri, 05 Jan 2007 07:20:01 -0500

According to the Labor Department:

The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies' procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.

What is the process by which an employer registers and files an application on line?

JSA — Thu, 04 Jan 2007 07:20:02 -0500

According to the Labor Department:

In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

Permanent Online System account

An account is created after an employer has submitted registration information on-line at www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

Sub-account

The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

Federal Employer Identification Number (FEIN)

The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

Username

The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

Password

An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration, the individual initially accessing the account is required to create a new password. The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

Personal Identification Number (PIN)

The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.

BALCA rules close relationship between labor certification sponsor and prior employer may disqualify prior experience.

RSA — Wed, 03 Jan 2007 12:34:50 -0500

The Board of Alien Labor Certification Appeals (BALCA) ruled (on or about December 7, 2006) that experience gained by the employee, beneficiary, with a prior employer may be disqualified if the sponsoring employer and the prior employer have a close relationship. The general rule is that experience gained with the sponsoring employer can not be considered, absent special circumstances, as experience to qualify the beneficiary for the job offered in the labor certification. In this ruling, BALCA has effectively held that experience with a prior employer will likewise be disqualified if the sponsoring employer has a close relationship with the prior employer. In Matter of Harvest Office Services, Inc., 2005-INA-111 (12/7/06), BALCA ruled:

However, BALCA caselaw makes it clear that business structure alone is not decisive in determining whether the alien’s experience was gained with a different employer for purposes of section 656.21(b)(5).
The Board held in Inmos Corp., 1988-INA-326 (June 1, 1990) (en banc), that to determine whether an aliens experience was gained with the same or different employer, the circumstances of each case must be examined. The Board stated in Inmos that the fundamental question is whether the employer is circumventing the fair testing of the U.S. labor market by shifting the alien from employment with one entity to employment with another, thereby providing the alien with the requisite training and experience without providing the same opportunity to U.S. workers. In Young Chow Restaurant, 1987-INA-697 (Jan. 13, 1989) (en banc), the Board indicated that showing that the two employers are separate legal entities may not be sufficient to demonstrate that they are separate employers for labor certification purposes. A concurring opinion in Young Chow cited Edelweiss Manufacturing Co., Inc., 1987-INA-562 (March 15, 1988) (en banc). Edelweiss involved the issue of whether the alien in that case was inseparable from the sponsoring employer. The Board’s decision in Edelweiss made it clear that the Board would look to substance, rather than form, in determining whether to grant labor certifications, and that it was not necessary to find fraud to look behind a business structure.

The message on my Corrections List states, "Failed Existence Check: Employer's address/phone number does not reference back...

JSA — Wed, 03 Jan 2007 07:20:01 -0500

The message on my Corrections List states, "Failed Existence Check: Employer's address/phone number does not reference back to employer's name." What should I do to resolve this problem?

According to the Labor Department:

You must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity at a specific address to the appropriate Backlog Processing Center.

I've already e-mailed a request about a "no contact" case to the "no BEC contact" e-mail address prior to this announcement ...

JSA — Tue, 02 Jan 2007 07:20:02 -0500

I've already e-mailed a request about a "no contact" case to the "no BEC contact" e-mail address prior to this announcement, but have not heard anything, should I send another request?

According to the Labor Department:

No. BECs did not process e-mail to these boxes pending the release of this procedure. You should receive an initial acknowledgement of your request soon, depending on the volume of cases.

Does the Prevailing Wage used to establish a pattern of recruitment need to be 100% of the current prevailing wage ...

JSA — Mon, 01 Jan 2007 07:20:01 -0500

Does the Prevailing Wage used to establish a pattern of recruitment need to be 100% of the current prevailing wage for the occupation?

According to the Labor Department:

Yes, as per current regulation governing recruitment for Foreign Labor Certification applications, recruitment should be done at 100% of the prevailing wage.

What is meant by "domestic worker applicants" in the provision on actual minimum requirements?

JSA — Sun, 31 Dec 2006 07:20:01 -0500

According to the Labor Department:

For purposes of § 656.17(i)(3), the provision on actual minimum requirements, the term "domestic" is being used as an alternative for "United States."

I have a case number but it begins with a "T", the Public Disclosure System says I need a D- or P- case number. What should...

JSA — Sat, 30 Dec 2006 07:20:01 -0500

I have a case number but it begins with a "T", the Public Disclosure System says I need a D- or P- case number. What should I do?

According to the Labor Department:

Until cases were fully data entered, they may have had numbers that began with a "T". These case numbers have since been converted and now begin with a "D" if the case is located in the Dallas BEC or a "P" if the case is in the Philadelphia BEC. The state in which the case was originally filed will determine the location of the appropriate BEC. You can check here to determine which state has your case, or you can try both a D and a P prefix to see which returns your case.

To whom should I send my case documentation for a case that could NOT be located at the BEC?

JSA — Fri, 29 Dec 2006 07:20:01 -0500

According to the Labor Department:

Send the above information to the appropriate BEC based on where the case was filed. The information should be addressed:

For Philadelphia BEC:
ATTN: No BEC Contact – Case Documentation
U.S. Department of Labor
Employment and Training Administration
1 Belmont Avenue, Suite 200
Bala Cynwyd, PA 19004

For Dallas BEC:
ATTN: No BEC Contact – Case Documentation
U.S. Department of Labor
Employment and Training Administration
700 North Pearl St., Suite 400N
Dallas, Texas 75201

Why must the advertisement medium be different in order for advertisements to be counted as additional steps?

JSA — Thu, 28 Dec 2006 07:20:02 -0500

Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?

According to the Labor Department:

As with all the recruitment requirements, the purpose of requiring the employer to use three additional recruitment steps is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity. It should be noted that each of the steps may target slightly different applicant populations. Using at least three of the additional steps normally used by businesses to recruit workers is a means of apprising a greater number of U.S. applicants of the job opportunity and more adequately substantiates an employer's claim there are no available U.S. workers for the job offer.

Can an employer request RIR conversion for a closed or withdrawn application?

JSA — Wed, 27 Dec 2006 07:20:01 -0500

According to the Labor Department:

No, only cases currently open and in process at the BEC are eligible.

However, if the employer is using the "No BEC Contact" procedure to reconstruct a case or the "Reopen" procedure to request reopen for a case you believe was closed in error as described in prior FAQs, you may submit your RIR conversion request and supporting documentation along with your reconstructed case. If requesting RIR conversion with another action, employer submissions should be clear that multiple actions are being requested, and documentation for each should be provided.

What will the BEC do about my case when they receive a request?

JSA — Tue, 26 Dec 2006 07:20:01 -0500

According to the Labor Department:

The initial step for the BEC will be to conduct a search to reconfirm that the BEC does not have the case in question.

If a case is NOT found, an e-mail will be sent to the employer or attorney indicating that the case could not be located and will provide instructions regarding what information the employer should provide. You will be required to send the following information (via regular mail) to the BEC:

Contact information including e-mail address for the employer or attorney

Photocopies of documents that reconstruct the application in its entirety, including supporting documentation originally submitted with the application (750A, 750B, G-28, etc.) and any subsequent correspondence between the employer or attorney and the State Workforce Agency (SWA). The employer or attorney should include any other information that may be useful in reconstructing the case.

Two copies of the application with new signatures from the employer and the alien,

Whatever proof is available that the application was filed with the SWA (e.g., correspondence from the SWA acknowledging receipt)

If available, evidence that application was transmitted from SWA to the BEC

Information should be postmarked within 30 days of being contacted by the BEC about the case.

In the unlikely event the case IS found at the BEC, steps will be taken to move the case into the appropriate stage of processing, and the employer or their attorney will be notified.

Can business necessity be used to justify requirements which exceed the occupation's Specific Vocational Preparation ...

JSA — Mon, 25 Dec 2006 07:20:01 -0500

Can business necessity be used to justify requirements which exceed the occupation's Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer's application?

According to the Labor Department:

Yes, business necessity is a means to justify requirements which are not normal to the occupation and/or exceed the SVP. While the job opportunity's requirements, as a rule, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the O*Net Job Zones, business necessity may be used to justify requirements not normal to the occupation and/or which exceed the SVP.

NOTE: Business necessity can be established by the employer demonstrating that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

What if I have not been contacted?

JSA — Sun, 24 Dec 2006 07:20:01 -0500

The BECs have sent all 45-Day Center Receipt Notification Letters (CRNL) to employers or their attorneys for cases shipped to the BECs by State and Regional Offices. OFLC recognizes that there may be some employers or their agents that believe they should have an application pending but have still heard nothing and received no information from the appropriate BEC about the application. In order to provide employers with the opportunity to have their case processed while also guarding against potential fraud, OFLC has established specific steps for employers or their attorneys to follow.

What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an ...

JSA — Sat, 23 Dec 2006 07:20:01 -0500

What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an application eligible for RIR conversion?

According to the Labor Department:

Yes. If the employer is able to remedy the shortcomings in the pattern of recruitment or documentation, requests for RIR conversion may be made even if RIR was denied previously up until the BEC begins supervised recruitment on the application, at which time the case is no longer eligible for conversion.