PERM And Its Impact On Schedule A Cases
The U.S. Department of Labor released its long-awaited regulations for PERM, the new program for permanent residence for foreign nationals based upon employment. The new program will take effect on March 28, 2005 and will replace the two current procedures for labor certification: basic labor certification and reduction in recruitment.
The purpose of the labor certification process, under the PERM program as well as the current basic labor certification and reduction in recruitment procedures, is to test the U.S. labor market. In other words, the employer must prove that there are not any U.S. workers who are able, willing and qualified to do the job for which the foreign national is seeking permanent residence and that the employment of the foreign national will not adversely affect the wages and working conditions of U.S. workers.
The U.S. Department of Labor has long recognized the severe labor shortage for registered nurses and physical therapists. Therefore, during the last few decades the Department of Labor has designated registered nurses and physical therapists as "Schedule A" occupations, thereby exempting them from undergoing the labor certification process. While Schedule A occupations get to bypass the labor certification process, the Department of Labor still retains authority over some requirements for Schedule A designation. Therefore, the Department of Labor regulations for the new PERM program have relevance to Schedule A occupations. In fact the PERM regulations made a few changes to Schedule A cases, which will become effective on March 28, 2005.
NEW APPLICATION FORM
PERM introduces a new form, Form ETA 9089 Application for Permanent Employment Certification, which must be used instead of the current ETA 750A and ETA 750B Application for Alien Employment Certification. The 10-page form contains much of the same information regarding the employer information, job information and beneficiary qualifications as the current form. The form also includes several questions about the efforts to recruit U.S. workers, although those portions of the form do not have to be completed on behalf of Schedule A cases. In fact, the second question on the form asks whether the application is being filed on behalf of a Schedule A occupation and if this question is answered in the affirmative the employer gets to bypass the recruitment questions on the form and submits the form to the Citizenship and Immigration Service with the I-140 Immigrant Petition for Alien Worker rather than filing the form with the Department of Labor.
PREVAILING WAGE DETERMINATION
The PERM program requires all employers - including those filing on behalf of Schedule A occupations - to obtain a prevailing wage determination from the State Workforce Agency in the state where the beneficiary intends to work. The processing time for prevailing wage requests from a state vary but generally a few days to a few weeks. The fact that Schedule A occupations must obtain a prevailing wage determination reinforces the opinion of the Department of Labor that Schedule A occupations are subject to prevailing wage requirements.
PERM maintained the requirement that a notice be posted and that the notice must contain the wage. However, PERM requires that the notice be posted between 30 and 180 days before filing and that it be posted for 10 consecutive business days rather than 10 consecutive calendar days. Also, PERM requires that notice be posted in any and all in-house media if the employer normally posts the position in the in-house media. The purpose of the notice is not to recruit U.S. workers; instead, the purpose of the notice is to notify workers at the employer's facility that an application has been filed on behalf of a foreign national and it provides U.S. workers an opportunity to file a complaint with the Department of Labor if their wages and working conditions differ.
CHANGE IN CRITERIA FOR SCHEDULE A
PERM modifies the criteria by which a registered nurse can qualify for Schedule A. Currently, the Department of Labor Regulations state that a professional nurse must have documentation that the alien "has passed the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination or that the alien holds a full and unrestricted (permanent) license to practice nursing in the state of intended employment". PERM makes two changes to this current regulation.
First, PERM expands the criteria to include passage of the NCLEX. Post 9/11 the Social Security Administration tightened its rules on issuing social security numbers, thereby preventing foreign nationals from obtaining social security numbers unless they had work authorization from the Citizenship and Immigration Service. As a result, many professional nurses were precluded from qualifying for Schedule A under the state license option because they were caught in an administrative quagmire because many state boards of nursing refused to issue a state nursing license without a social security number and the foreign nurse couldn't get a social security number without authorization to work in the United States. The Citizenship and Immigration Service responded to the dilemma by issuing a memorandum on December 20, 2002 stating that a professional nurse could qualify for Schedule A if the professional nurse had met the state requirements including passage of the NCLEX and the social security number was the only obstacle to obtaining the full and unrestricted state license. PERM follows this memorandum by the CIS and actually expands it by accepting passage of the NCLEX as an acceptable option for Schedule A without requiring proof that the social security number is the only obstacle to getting the state license.
Second, PERM modifies the criteria for a professional nurse trying to qualify under the CGFNS option. Specifically, PERM requires that the professional nurse obtain a CGFNS certificate, not merely proof that the professional nurse has passed the CGFNS nursing skills examination. The Department of Labor noted that when the initial regulation was drafted, CGFNS required applicants to pass a test that evaluated both English proficiency and nursing skills. The Department of Labor stated in PERM that it understood the passage of the CGFNS nursing examination to include both factors (English proficiency and nursing skills). Therefore, while the initial regulation said passage of the CGFNS examination was acceptable, the Department of Labor intended that to include the English proficiency tests as well. Therefore, the PERM regulation requires a CGFNS certificate, rather than simply the CGFNS nursing skills examination.
In addition to the changes to the Schedule A program, the Department of Labor considered adding other occupations to Schedule A. Some organizations and companies who responded to the initial proposed PERM regulations in March 2002 suggested expanding Schedule A to include college and university professors to Schedule A or to provide a "flexible, just-in-time system for occupation shortages" whereby internet date from local areas could be collected and labor shortages could be determined on a localized basis. However, the Department of Labor decided to not include any other occupations in Schedule A. Therefore, only registered nurses and physical therapists are included in Schedule A.
About The Author
Sherry L. Neal, Esq. is a Partner in the Cincinnati, Ohio office of Hammond Law Group. She represents a wide range of clients in the employment of foreign nationals. She is a member of the Health Care Committee of the American Immigration Lawyers Association and Vice Chair of the Ohio Chapter of the American Immigration Lawyers Association. She is a frequent author and speaker on immigration issues, including the recent seminar through ilw.com regarding healthcare immigration. She can be reached at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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