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For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the State Workforce Agency (SWA) determination?

According to the Labor Department:

The 30 days to file an appeal to the Certifying Officer begins on the date that the SWA makes a final decision on the case. If the employer submits supplemental information (as permitted one time), the 30 days begins after the SWA considers and makes a decision on the supplemental information.

Job Requirements/ Duties

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.

What To File/Documentation

Time Frames

Certifying Officer Review And Board Of Alien Labor Certification Appeals (BALCA)

According to the Labor Department:

Generally, the newspaper advertisements must be placed on two different Sundays at least 30 days, but no more than 180 days, prior to filing the application. The Sundays may be consecutive.

However, if the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation.

This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

For journals, there is no specific edition requirement, however, the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application.

According to the Labor Department:

No, labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.

College And University Teachers--Recruitment

Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?

According to the Labor Department:

Yes, an attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer’s temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer’s PIN. When the attorney or agent logs in and changes the attorney's or agent's password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?

According to the Labor Department:

No, having a different prevailing wage on the refiled application from that on the original will not impact whether or not the job opportunity is identical. For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application.

Registration

Multiple Positions

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.

According to the Labor Department:

Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.

Household Domestic Service Workers, Bookkeepers, Laborers, etc.

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.

According to the Labor Department:

No one method for saving and/or storing necessary documents is prescribed, nor is any particular method proscribed. The burden of establishing the validity of any documentation provided in support of a labor certification application rests with the employer. In establishing a method by which to save/store supporting documentation, the employer must remember that the responsibility for producing valid and defensible documentation in the event it is requested by a Certifying Officer rests solely with the employer. Such documentation must be retained by the employer for five years from the date of filing

Must the employer place a job order with the State Workforce Agency (SWA) or will a job order placed on America's Job Bank (AJB) be sufficient?

According to the Labor Department:

The employer is required to place a job order with the SWA serving the area of intended employment. It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient.

NOTE: The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement.