Mark A Ivener, A Law Corporation

PERM (Labor Certification) Frequently Asked Questions

Q: What is PERM?

A: PERM is the new Labor Certification system that will allow employers to file Labor Certifications online. Employers will not need to submit supporting documentation with the cases and will instead retain all documentation for submission to the Department of Labor (DOL) in the case of an audit. A percentage of all cases will be flagged for a more extensive supervised recruitment process, but most will be approved within 45 to 60 days.

State Workforce Agencies (SWAs) will largely be removed from the process with most of the cases managed by two regional DOL offices. SWAs will still have the responsibility for determining prevailing wages.

Q: How are PERM cases submitted?

A: Employers for the first time have the option of submitting cases electronically. They can also mail their application to one of two DOL ETA processing centers (depending on their state). The DOL will be requiring a new ETA 9089 Application for Permanent Employment Certification which will be accepted electronically on line or by mail which will not be processed as timely as those filed electronically.

Q: What will happen to applications filed before March 28, 2005?

A: The applications can continue to be filed under the current Traditional or RIR Labor Certification regulations. Pending applications which are not withdrawn after PERM’s effective date will continue to be processed under the current rules in backlog reduction centers in Philadelphia and Dallas. Processing times for these applications should continue to be posted on the DOL website.

Q: Can a case be converted to PERM?

A: Only existing Labor Certification applications for the “identical job opportunity” may be re-filed under PERM’s new procedures. The final rule defines this term as applications which have the same employer, foreign national, job title, job location, job description and minimum requirements, including changes made in response to an assessment notice from the SWA prior to PERM’s effective date of March 28th.

The final rule defines this term as applications which have the SAME employer, foreign national, job title, job location, job description and minimum requirements, including changes made in response to an assessment notice from the SWA prior to PERM’s effective date.

With respect to withdrawing and re-filing existing applications under PERM, the DOL has now decided to allow an employer to withdraw the application, re-file under PERM and retain the priority date established in the original application. But the priority date may only be maintained if no recruiting has yet occurred. That basically means priority dates may only be retained in Traditional Labor Certification cases where recruiting has not yet begun. To qualify to retain the priority date, the new filing must take place within 210 days of the withdrawal. However, employers can withdraw RIR and Traditional cases and re-file under PERM and establish a new priority date. Employers should also note that if a case is re-filed under PERM, recruiting done for a previously filed petition cannot be used unless that recruiting would also satisfy the PERM requirements. That’s not likely given the fact that PERM requires the recruiting take place within close proximity to the time a PERM petition is filed.

Q: What Key Points Need to be Resolved by DOL and/or Considered Before Requesting Withdrawal and Re-Filing Under PERM?

A: Loss of priority date if application is not found to be “identical”

Under PERM, an “employer” is defined as having the same Federal Identification Number (FEIN) for purposes of determining if the employee gained the required experience on the job. If an employer has gone undergone a corporate restructuring and has a new FEIN, the DOL may not find the applications to be identical.

Similarly, the job site may have been transferred to another employer location which is still within commuting distance or even across the street.
Employers frequently change job titles, and aspects of the job description evolve, where the original application has been pending for a substantial amount of time, such changes are likely. Many computer jobs see turnover of software on frequent basis. Job functions are moved to different divisions in large companies.

“Minimum requirements” were generally not specified in RIR applications, but DOL has allowed some flexibility if it could be found within the four corners of the original application. If the PERM recruitment is tied to applications that do not contain minimum requirements, it may not be worth re-filing.

Financial burden, and repetitive retesting and re-recruiting for the re-filed application

Once the application is withdrawn, it must comply with all the new PERM rules prior to re-filing. This includes new recruitment, two Sunday ads, a new job order, and three other steps for professional jobs detailed under the new recruitment procedures.

In its comments, DOL concluded that employers should not obtain the benefits of the new system if they have not complied with all of its new requirements. Thus, an employer must sustain the costs of new recruitment, administrative costs, as well as additional attorney fees.

Will the data from the old application meet PERM’s new requirements?

The final rule’s focus on “identical” applications does not appear to allow for any flexibility with amending the data, so the existing data which will form the basis for the new application must be measured by PERM criteria.

The salary must meet 100% of the current wage instead of 95%.

If the employee gained experience with the employer, will it meet PERM’s requirement that the jobs are not “substantially comparable?”

Will the employer be able to document via position descriptions, organization charts and payroll records that the position does not require performance of the same duties more than 50% of the time?

Will the employer be able to document the same information as above if the employee was previously a contractor and gained the necessary experience while working as a controller?

Will the employer be able to sustain the proof burden if audited?

Q: What changes does the PERM make to the prevailing wage determination process?

A: While a Labor Certification will not be revoked per se if the prevailing wage rises during processing of the case, employers are still required to certify on the new Labor Certification ETA 9089 form that it will pay the new prevailing wage at the time permanent residency is granted or the foreign national is admitted to take up the certified employment. Under the current law, the standard is that the employer must pay the initial prevailing wage at the time permanent residency is approved. Under PERM, if the prevailing wage increases over the approximate 2 or more year time it takes to obtain a Green Card, the employer must pay the increased wage.

Based on the new H-1B/L-1 legislation effective December 8, 2004 (the Consolidated Appropriations Act of 2005), the DOL will no longer permit employers to pay less than 100% of the prevailing wage rate. Up until now, employers could pay 95% or higher.

The new law also mandates that the DOL develop a four tier scale for det ermining prevailing wages (up from the current two tier).

Q: What kind of recruiting is required under PERM?

A: In the six months prior to filing an application, employers are required to place a job order with the State Workforce Agency and run two newspaper advertisements in Sunday papers. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods. Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that must be submitted to the DOL in the case of an audit.

Q: What does the recruitment report need to contain under the PERM rules?

A: As in the current rules, employers are required to document recruiting results in a recruiting report. The abbreviated recruiting reports permitted under the RIR regulations will no longer be permitted. The reports currently required in Traditional Labor Certification cases are closer to the new system.

Employers under PERM will need to prepare an onerous recruiting report that describes recruitment steps undertaken and the result achieved, the number of hires and, if applicable, the number of US workers rejected, categorized by lawful job related reasons for such rejections. The DOL, after reviewing the employer’s recruitment report, may request the US workers’ resumes or applications, sorted by the reasons the workers were rejected.

Q: How does an employer submit supporting documentation?

A: An employer will no longer submit supporting documentation with the Labor Certification. Instead, such documentation must be maintained by the employer and submitted when requested by the DOL as part of an audit.

Q: Which cases will be selected for auditing and how will audited cases be handled?

A: The DOL’s computers will review applications based on various selection criteria that will allow problematic applications to be identified for audit. Also, some applications will be randomly selected for auditing.

If an application is selected for auditing, the employer will be notified and required to submit specific documentation including the recruiting report to verify the information submitted in the ETA 9089. The documentation will be reviewed by a DOL official and either certified or, if the application is incomplete or the documentation does not support the ETA 9089, the application will be denied and the employer will be notified of the reasons. The DOL will also have the authority to request additional information before making a final determination.

The DOL also has the option in audited cases of ordering the employer to conduct supervised recruiting. This might happen, for example, where there are questions arising regarding the adequacy of an employer’s test of the labor market. The supervised recruitment process will closely resemble the current traditional Labor Certification process (as opposed to the RIR process). The key difference, however, is that the DOL’s Employment and Training Administration will supervise the recruitment instead of the SWA. Just as in the current system, at the end of the recruiting, the employer will be required to submit another recruitment report outlining the lawful job-related reasons why U.S. worker candidates were rejected. The DOL will then either certify or deny the Labor Certification application.

Q: What is “supervised recruitment” and when will it be required?

A: Supervised recruitment is a type of Labor Certification process that closely resembles the current Traditional Labor Certification process. Supervised recruitment consists of advertising the job in publications and using text approved by the DOL. Ads in newspapers must be placed for three consecutive days, one of which must be a Sunday or, if directed to advertise instead in a professional, trade or ethnic publication, the advertisement must be published in the next edition. The ads direct applicants to send their resumes to the DOL for referral to the employer and must include a job number and address designated by the DOL. The advertisement also needs to describe the job duties and requirements and list a wage higher than the prevailing wage.

The DOL has broad discretion to require a supervised recruitment in any cases where its appropriate. The DOL anticipates that a decision to require supervised recruitment will usually by based on labor market information.

Q: When must a U.S. worker be accepted during the recruitment process?

A: The DOL will deem a U.S. worker qualified for the job being certified when the worker is “able, willing, qualified, and available for and at the place of the job opportunity.” The U.S. worker must be able to perform the job in a normally accepted manner and as customarily performed by other U.S. workers similarly employed. The worker can not be rejected if they are unable to perform the job, but can be trained to do the job in a “reasonable period of on-the-job training.”

Definition of “Qualified Worker”

Job Qualification through Reasonable Period of On-The-Job Training:

A. What it does not mean: DOL clarified that it does not mean that a U.S. worker who failed to meet the employer’s stated minimum requirements, such as education, training or years of experience, must be deemed qualified.

B. What it does mean: If a worker lacks a skill that may be acquired during a reasonable period of on-the-job training, the lack of that skill is not a lawful basis for rejecting an otherwise qualified worker. No definition has been provided as to what constitutes a “reasonable period” of training as it may vary by occupation, industry, and job opportunity.

Q: Does PERM include business necessity letters?

A: The final rule retains the current business necessity standards allowing employers to provide documentation demonstrating that the job requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer.

Q: What changes have been made to the rules for applicants engaged in a “combination of occupations”?

A: Combination occupations can be justified in three ways:

  1. the employer can prove it has normally employed persons for that combination and/or
  2. workers customarily perform the combination in the area of intended employment and/or
  3. the combination job opportunity is based upon a business necessity.

Q: Are there changes to the rules regarding requiring a foreign language capability?

A: The final rule continues to allow for “business necessity” to justify the requirement of a foreign language. Furthermore, DOL has expanded the rule to include other possible business justifications for a foreign language requirement such as the need to communicate effectively with one’s co-workers or subordinates. Safety considerations in certain working environments may also support a foreign language requirement.

The regulations list the factors which may be used to demonstrate business necessity such as the need to communicate with a large majority of the employer’s customers, employees, and contractors. It also describes the type of documentation that must be retained: the number and proportion of its clients, contractors, or employees that do not speak English; detailed plans to market to a foreign country; and detailed explanation why the duties include frequent communication with such individuals.

Q: How are lay off situations treated under the new rules?

A: If there was a layoff by the employer in the area of intended employment within six months of filing the application, either in the occupation for which certification is sought or in a related occupation, the employer must document that it has notified and considered all potentially qualified laid-off U.S. workers of the job opportunity involved in the application and the results of the notification. A “related occupation” is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which a Labor Certification is sought. The employer is required to document it has notified and considered only those workers it laid off, not those workers laid off by other employers. But in the case where a company is directed to complete supervised recruitment, the DOL may take notice of industry layoffs in directing the employer to make additional recruiting efforts.

When an employer has laid off workers, stricter requirements on proving bona fide efforts to recruit U.S. workers may come into play. The final rule now defines “layoff” to be an involuntary separation of one or more workers without cause or prejudice. The definition includes, but is not limited to, personnel actions characterized by an employer as reductions-in-force, restructuring, or downsizing.

Q: How has the DOL changed the rules with respect to listing job duties?

A: The final rule also now addresses the question of unduly restrictive job duties. Employers who seek to get around the restrictive requirements rules cannot simply list job duties in a restrictive manner in an attempt to eliminate U.S. workers. The job duties must be consistent with the O*NET job zones assigned to the occupation, and duties not consistent with O*NET must now be supported by business necessity.

Q: What is the new standard for alternate experience in Labor Certification cases?

A: The employer should accept any and all experience that would reasonably prepare an applicant for the position and not permit an employer to accept only the specific related experience the foreign national might have, without regard to whether the other experience would prepare the applicant for the position in question. Alternative requirements and primary requirements must be substantially equivalent, to each other with respect to whether the applicant can perform the job duties in a reasonable manner. However, DOL cautions that even where the employer’s alternative requirements are substantially equivalent, but the foreign national does not meet the primary job requirement and only qualifies through the alternative requirements, such alternative requirements will be viewed as unlawfully tailored to the foreign national’s qualifications unless the employer indicates that applicants “with any suitable combination of education, training or experience are acceptable.”

Q: Can an employee get credit for work experience gained on the job with the sponsoring employer?

A: Dissimilar Jobs

An employer may use experience gained by the foreign national in a different job if it can prove that the experience is not “substantially comparable” to the job for which certification is being sought. “A substantially comparable job or position means a job or position requiring performance of the same duties more than 50% of the time.” Evidence would include “position descriptions, percentages of time spent on various duties, organizational charts, and payroll records.”

The DOL includes both foreign national “employees” and “contract employees.” The latter category appears to refer to employees who the employer previously contracted as independent contractors, but not to the individuals used by a contracting firm that were employed by that entity.

Disallows any Education or Training Paid by the Employer

Although experience may be gained in a different job, an employer may not use any educational or training requirements that it paid for.

New Expanded Definition of “Employer”

The term ‘employer’ means an entity with the same Federal Identification Number (FEIN).

This new rule appears to allow employers to use experience gained by foreign entities, since presumably they do not have federal FEINs, as well as experience gained while employed with acquired companies, and even subsidiaries and branches of the same employer, as long as the FEINs are different.

Q: How long must documents be retained for PERM Labor Certification cases?

A: Copies of applications for permanent employment certification filed with the DOL and all supporting documents must be retained by the employer for five years from the date of filing the ETA-9089.