Permanent Residency

According to the Labor Department:

Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to a National Processing Center.

According to the Labor Department:

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.

According to the Labor Department:

Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of aliens in those occupations. An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should review § 656.5, Schedule A, to determine whether the alien's qualifications meet the provision's requirements.

According to the Labor Department:

If the granting of a labor certification is found not to be justified, whether based on unintentional or willful conduct of the employer, a previously approved labor certification will be revoked.

In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?

According to the Labor Department:

We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.

What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?

According to the Labor Department:

The expiration date is the end date of the prevailing wage validity period as provided by the State Workforce Agency, which will range from no less than 90 days to no more than one year from the determination date.

As a result of the State Department updating its July 2007 Visa Bulletin on July 2, 2007, declaring all Employment-based preference categories to be unavailable, the USCIS has now announced that it "is rejecting applications to adjust status (Form I-485) filed by aliens whose priority dates are not current under the revised July Visa Bulletin."  The USCIS Press Release is as follows:

Incredibly, the U.S. Department of State has announed today, July 2, 2007, that it is updating its Visa Bulletin for July 2007.  The July Visa Bulletin was the visa bulletin which all of a sudden declared most of the Employer Based visa categories to be current.  Now, today, the State Depatment has announced that it unexpectedly used "almost 60,000 Employment numbers" in June, and as a result the State Department is changing the July numbers.  Specifically, the State Department has announced that all numbers for the Employment-based preference cases have been used up for this fiscal year (FY-2007), and that new Employment-based preference numbers will only be made available for the next fiscal year (FY-2008), beginning October 1, 2007.

This is a truly incredible turn of events:  one moment the State Department announces that most of the Employment-based preference categories will be current in July, and the next moment they announce that all of the Employment-based preference categories are unavailable in July--even before any new cases were filed in July.  In other words, this was a pure miscalculation on the part of the State Department, and was not based on any deluge of filings on July 2--since the numbers were cut off before anyone even filed in July.

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).

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.

The U.S. Department of State (DOS) announced on 3/21/07 that U.S. Embassies and Consulates will now resume accepting petitions for immediate relative immigrant classification from American citizens who are resident in their consular districts, under certain conditions.  The DOS announcement appears below.

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 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 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.

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 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.

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.

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.

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.

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.