Labor Certification

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

According to the Labor Department:

The employer can access a customer-friendly web site (http://www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.

NOTE: Additional information regarding personal identifiers will follow.

NOTE: The web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application the employer files. Under this option, each time an employer files an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically and the employer will only need to enter the data specific to the application at hand.

According to the Labor Department:

PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date.

If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.

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. However, the notice of filing must include the required 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).

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

Notice Of Filing

Certification

Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same alien for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same alien for the same job opportunity?

According to the Labor Department:

Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same alien involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same alien and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

How To File

Recruitment Report

According to the Labor Department:

No, while the majority of the recruitment must take place within the 30 - 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.

According to the Labor Department:

The PERM regulation is effective March 28, 2005, and applies to labor certification applications for the permanent employment of aliens filed on or after that date.

Acceptable Publications

Invalidation

Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: "5 Attorneys," "Attorneys" or "Attorneys, multiple openings"?

According to the Labor Department:

As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.

Filing Timeframes

Alien Experience

According to the Labor Department:

The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.

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