PERM: The New Paradigm For Labor Certifications
Nearly 3 years after promulgating proposed massive changes to the way the Department of Labor processes and decides permanent labor certifications (67 FR 30466 et. seq., May 6, 2002), [hereafter NPRM] pursuant to its responsibility under Section 212 (A)(5)(A) of the Immigration and Nationality Act (hereafter INA), 8 U.S.C. 1182(a)(5)(A), final regulations were finally published in the December 27, 2004 Federal Register (69 FR 77325-77421). The promulgation of the so-called PERM regulation entirely replaces 20 Code of Federal Regulations (CFR) Part 656. All labor certifications reaching the Department of Labor (DOL) on or after March 28, 2005 must be filed under the new procedures and standards. All cases reaching DOL before then will be processed under the “old” procedure. The changes to the process are significant both procedurally and substantively. This article will acquaint the reader with the new procedures and substantive changes and discuss some of the challenges faced by practitioners under PERM.
It should also be noted that the promulgation of December 27, 2004 will affect the way prevailing wages are to be determined, not only for labor certification applications but also for all prevailing wage determinations made on or after March 8, 2005, including those for H-1B filings.
Under section 212(a)(5)(A) of the INA (8 U.S.C. 1182(a)(5)(A)), certain aliens may not obtain immigrant visas for entrance into the United States in order to engage in permanent employment unless the Secretary of Labor has first certified to the Secretary of State and to the Secretary of Homeland Security that: (1) There are not sufficient United States workers who are able, willing, qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work; and (2) The employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed.
Under PERM employers will be required to obtain a Prevailing Wage Determination (PWD) from the appropriate State Workforce Agency (SWA) and to conduct recruitment before filing a labor certification application.
Recruitment will require placement of a job order with the SWA, 2 advertisements on Sunday (with limited exception), specified posting and for all professional jobs, recruitment will be required to include at least three (3) additional steps from a designated list of additional types of recruitment. Employers will have the option of filing applications electronically, using web-based forms and instructions, or by mail. The new application Form 9089 requires completion of information about the job offer and requirements as well as many attestations concerning the recruitment and other issues bearing on processing. No additional documents are submitted at the time of application but the Certifying Officer (CO) may request any or all of the documents required to support the attestations under a procedure designated as an audit.
A key document to be prepared and retained is the recruitment report, discussed below. Electronic submission and certification requires ETA Form 9089 be printed and signed by the employer immediately after DOL provides the certification. A copy of the signed form must be maintained in the employer's files, together with all documentation supporting the attestations. The original signed form must be submitted to support the Immigrant Petition for Alien Worker (Form I-140). The CO may also order supervised recruitment for the employer's job opportunity, such as where questions arise regarding the adequacy of the employer's test of the labor market. If the application is denied, the notification will set forth the deficiencies upon which the denial is based. The employer will be able to seek administrative-judicial review of a denial by the Board of Alien Labor Certification Appeals (BALCA).
20 CFR 656.3 provides important definitions of some of the terms used in part 656 including (1) Area of Intended Employment; (2) Employer (3) Employment, (4) Specific Vocational Preparation, and (5) Professional Occupation. Applications under PERM will be screened and either certified, denied, or selected for audit. There is no Notice of Findings procedure as with pre-PERM applications. There is no provision for conversion of currently pending applications but there is a procedure for refiling and retention of a priority date established by a pending application. As described below, refiling requires all PERM recruitment requirements be undertaken. DOL has set up an email box for questions and a web site. Questions may be sent via e-mail to PERM.DFLC@dol.gov. Frequently asked questions and, hopefully, useful answers as well as the form and instructions will be posted at www.workforcesecurity.doleta.gov/foreign.
All Schedule A applications will now require both a PWD and posting.
Nurses (Registered) - The rule has been modified to require a CGFNS Certificate, not merely proof that the alien has passed the CGFNS nursing skills examination. In addition passage of NCLEX-RN will permit filing of an I-140 under Schedule A.. DOL decided not to recognize temporary licensure in the state of intended employment as a qualifying basis for eligibility. Full and unrestricted permanent licensure in the state of intended employment is required if licensure rather than CGFNS or NCLEX is the claimed basis for Schedule A eligibility.
Performing Artists - Performing artists of exceptional ability are now included in Group II of Schedule A.
For Schedule A applications only one copy of Form 9089 is to be submitted with the I-140. The remainder of Schedule A is unchanged.
Elimination of Schedule B
This final rule does not contain a provision for Schedule B occupations but allows the PERM process to be utilized for any occupation. See discussion below concerning determination of qualified U.S. workers.
Refiling of Pending Cases in New PERM System
There is no provision in PERM for conversion of pending applications. Instead the regulation, at 20 CFR 656.17(d) sets forth refiling procedures allowing a pending labor certification which has not reached the formal job order stage, to be processed under PERM. All PERM recruitment requirements must be met before refiling can take place. All procedures and provisions of PERM will apply to the refilled application. The original labor certification filing date (priority date) will be retained if all refiling requirements are met. NOTE: The requirements are stringent and failure to meet each and every aspect of the refiling requirements will, according to the regulation, result in loss of the original priority date.
If the job opportunity is identical, once all PERM PWD and pre-filing recruitment requirements are met, a PERM labor certification application may be filed. On Form ETA 9089, Part A. 1., the employer will indicate it is seeking to utilize the filing date from a previously filed application. An alternative procedure allows an employer to withdraw a pending application and refile under PERM, again for the identical job opportunity, if the PERM application is filed within 210 days of withdrawal. It is inconceivable to me why one would ever consider withdrawal first without having a solid PERM application ready to file and then why not utilize the appropriate Block on ETA 9089 to withdraw on actual filing the PERM application.
Practitioners must very carefully review with the employer and foreign national the possible positive effect of a PERM filing and the possible negative factors in refiling. The positive is a possible faster labor certification determination. The negatives include but are not limited to (1) the cost and effort of readvertising and other required recruitment; (2) loss of priority date if (a) the DOL determines the job opportunity is not identical, (b) replacement of a good RIR application with a PERM that may be denied; (3) additional cost for legal fees and employer time in reviewing resumes, etc. (4) possible issues under PERM which do not exist in pre-PERM filings and (4) possible loss of the ability to extend an H-1B beyond the 6th year (an issue still to be resolved with USCIS). With the retrogression of some Employment 3rd Preference quotas already a fact and further retrogression possible, loss of a priority date or the ability to meet the
requirements to file H-1B extensions beyond the 6th year are very real concerns.
As indicated, refiling must be for an identical job opportunity after complying with all of the filing and recruiting requirements of PERM. A copy of the original application, including amendments, must be sent to the appropriate ETA application processing center when requested by the CO under 20 CFR 656.20.
Identical job opportunity requires the employer, alien, job title, job location, job requirements, and job description be the same as those stated in the original application filed under the regulations in effect prior to March 28, 2005. For purposes of determining identical job opportunity, the original application includes all accepted amendments up to the time the application was withdrawn, including amendments in response to an assessment notice from a SWA pursuant to Sec. 656.21(h) of the regulations in effect prior to March 28, 2005.
What if there has been a corporate reorganization? Since the term employer is defined at 20 CFR 656.17(i)(5)(i) as an entity with the same Federal Employer Identification Number (FEIN) provided it meets the definition of employer at 20 CFR 656.3, what happens if the employer, because of reorganization, merger, etc, now has a new FEIN? Under pre-PERM rules, the employer can submit evidence it is a corporate successor and continue with the certification. The PERM regulations do not address this issue and it is a significant question, especially for refilings.
Requirement to Obtain Prevailing Wage Determination (PWD), 20 CFR 656.40
Prevailing wage requirements are set forth at 20 CFR 656.40. There are substantial changes. The section incorporates changes made by Section 423 of the Consolidated Appropriations Act of 2005, Pub. L. 108-447, HR 4818, December 8, 2004 amending Section 212(p) of the INA, 8 U.S.C. 1182(p) to provide:
“(3) The prevailing wage required to be paid pursuant to (a)(5)(A) [permanent labor certification], (n)(1)(A)(i)(II) [H-1B] and (t)(1)(A)(i)(II) [H-1B pursuant to Chile and Singapore Free Trade Agreements] shall be 100 percent of the wage determined pursuant to those sections. (4) Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.” [emphasis added]
The employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment using whatever form is designated by the state SWA prior to filing and presumably, prior to the start of recruitment. The employer must maintain the SWA PWD in its files. The determination shall be submitted to an ETA application processing center in the event of an audit.
As indicated in the statute, the former provision allowing an employer to pay 95% of prevailing wage determinations and still meet the prevailing wage requirement has been eliminated. The employer must pay 100% of the PWD. This provision is effective March 8, 2005 for both permanent labor certifications and H-1B filings on or after that date.
SWA Determination of Prevailing Wage
20 CFR 656.40 (b)(1) states, that except for institutions of higher education and nonprofit or
governmental research organizations as defined at 20 CFR 656.40(e) and professional athletes 20 CFR 656.40(f), if the job opportunity is covered by a collective bargaining agreement (CBA) that was negotiated at arms-length between the union and the employer, the wage rate set forth in the CBA agreement is
considered as not adversely affecting the wages of U.S. workers similarly employed, that is, it is considered the ``prevailing wage'' for labor certification purposes.
If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean, except as provided at 20 CFR 656.40(b)(3) of this section, of the wages of workers similarly employed in the area of intended employment. The wage component of the DOL Occupational Employment Statistics Survey (OES) shall be used to determine the arithmetic mean, unless the employer provides an acceptable survey pursuant to 20 CFR 656.40 (g).
20 CFR 656.40 (b)(3) states that if the employer provides a survey acceptable under 20 CFR 656.40 (g) [see discussion of Employer Provided Wage Survey below] that provides a median and does not provide an arithmetic mean, the prevailing wage applicable to the employer's job opportunity shall be the median of the wages of workers similarly employed in the area of intended employment. This is a significant change in two areas. First, DOL for the first time apparently mandates the SWA to accept an employer provided survey if it meets the requirements set forth. Second, the median or mid-point of the salary range can be utilized if the survey does not provide an average wage.
Surveys that only provide one overall skill level such as the Bureau of Labor Statistics (BLS) are acceptable as long as there is no useable date on varying skill levels in the survey.
Another significant change is that the David-Bacon Act, 40 U.S.C. 276a et seq., 29 CFR Part 1 and McNamara-O'Hara Service Contract Act, 41 U.S.C. 351 et seq. wage determinations may no longer be mandated by the SWA but the employer may designate the use of either one if it believes such wage rate is appropriate.
Under 20 CFR 656.40 (c), the SWA must specify the validity period of the prevailing wage, which in no event may be less than 90 days or more than 1 year from the determination date. Employers must file their applications or begin the recruitment required within the validity period of the PWD specified by the SWA. 20 CFR 656.490(d) defines similarly employed to mean having substantially comparable jobs in the occupational category in the area of intended employment, except that, if a representative sample of workers in the occupational category can not be obtained in the area of intended employment, similarly employed
means: (1) Having jobs requiring a substantially similar level of skills within the area of intended employment; or (2) If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment.
For institutions of higher education and research entities as defined at 20 CFR 656.40 (e)(1), the prevailing wage level must take into account only the wage levels of employees at such institutions and organizations in the area of intended employment.
Professional athlete wage determinations for designated athletes, as described in 20 CFR 656.40(f)(1) and (2), are determined pursuant to applicable professional sports league rules.
Employer Provided Wage Survey
The SWA must now consider wage information provided by the employer in making a prevailing wage determination, 20 CFR 656.40(g). Indeed, it appears the SWA must approve an employer provided survey if it meets all applicable requirements, 20 CFR 656.40(g). An employer survey can be submitted
either initially or after SWA issuance of a prevailing wage determination derived from the OES survey. In the latter situation, the new employer survey submission will be deemed a new prevailing wage determination request. Where the employer submits a survey or other wage data for which it seeks acceptance, the employer must provide the SWA with enough information about the survey methodology, including such items as sample size and source, sample selection procedures, and survey job descriptions, to allow the SWA to make a determination about the adequacy of the data provided and validity of the statistical methodology used in conducting the survey in accordance with guidance issued by the ETA national office.
It appears that the criteria of DOL General Administrative Letter (GAL) No. 2-98, October 31, 1997 for alternative surveys have continuing validity. Although PERM appears to have eased the alternative survey acceptability, the supplementary information to the promulgation of PERM cites GAL 2-98 with approval, 69 FR 77325 at page 77368. GAL 2-98 at Section “J” sets forth 7 criteria for alternate surveys- (1) data must have been collected within 24 months of publication of the survey; (2) must have been published within 24 months of the date of submission to the SWA, must be the most current edition of the survey; (3) must reflect the area of intended employment which must not be expanded beyond that which is required to produce a representative sample; (4) job description must be adequate match between employer’s requirements/job description and survey job description; (5) survey must be across industries employing workers in the occupation; (6) must be arithmetic mean [but see change I acceptance of median discussed above]; and, (7) methodology used for survey must be provided to show it meets recognized statistical standards and principles in producing a prevailing wage (see discussion at 69 FR 77325 at pages 77368-69).
Under 656.40(g)(4), if the employer-provided survey is found not to be acceptable, the SWA must inform the employer in writing of the reasons the survey was not accepted. The employer may then file supplemental information as provided in 20 CFR 656.40 (h), file a new request for a prevailing wage determination, or appeal under 656.41. The SWA must consider one supplemental submission about the employer's survey or the skill level the SWA assigned to the job opportunity or any other legitimate basis for the employer to request such a review. If the SWA does not accept the employer's survey after considering the supplemental information, or affirms its determination concerning the skill level, it must inform the employer of the reasons for its decision. The employer may then apply for a new wage determination or appeal within 30 days to the CO at the appropriate processing center under 20 CFR 656.41. Any employer desiring review of a CO PWD must make a request for review of the determination by the Board of Alien Labor Certification Appeals (BALCA) within 30 days.
Validity Period of Prevailing Wage Determinations
The SWA will specify the validity of the prevailing wage, which will be no less than 90 days or more than 1 year from the date of the determination. Employers are required to file their applications or commence the required pre-filing recruitment within the validity period specified by the SWA.
Basic Recruitment Requirements
There is a distinction between the kind of recruitment required for professional occupations (defined at 20 CFR 656.3 – see discussion below), that is those normally requiring a bachelor’s degree and non-professional occupations. Except for college and university teachers covered by 656.18, Schedule A applications, 656.5 and 15, and sheepherders, 656.16, pursuant to 20 CFR 656.17(e) all occupations require the following recruitment steps conducted at least 30 days but not more than 180 days before filing the labor certification application:
- 30 day job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application shall serve as documentation of this step. 656.17(e)(i)(A).
- Advertisements in newspaper or professional journals. See discussion below.
- Notice pursuant to 20 CFR 656.10(c). This is 10 day written posting or notice to the CBA. See discussion below.
Recruitment for Professional Occupations
Additional recruitment steps are required for professional occupations, 20 CFR 656.17(e)(1)((ii). The employer must select three additional recruitment steps from the alternatives listed in paragraphs (e)(1)(ii)(A)-(J) of 656.17. Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application. NOTE: It is probably good practice to complete all recruitment steps 30 days or more before filing to allow a reasonable time for responses, unless that becomes infeasible for some legitimate reason. None of the steps may have taken place more than 180 days prior to filing the application. It appears clear from the form that 3 separate steps are required. For example, running a notice on 2 different job search web sites does not appear to constitute 2 steps since there is no place on the ETA 9089 to indicate more than one such effort.
The 3 additional steps must be from the following list:
(A) Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
(B) Employer's Web Site. The use of the employer's Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application. [This apparently can be counted as one of the 3 steps required in a professional occupation even if required as part of the notice under 656.10 (the posting notice).]
(C) Job Search Web Site other than the employer's. The use of a job search Web site other than the employer's can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application. Copies of web pages generated in conjunction with the newspaper advertisements required by paragraph (e)(1)(i)(B) of this section can serve as documentation of the use of a Web site other than the employer's.
(D) On-campus Recruiting. The employer's on-campus recruiting can be documented by providing copies of the notification issued or posted by the college's or university's placement office naming the employer
and the date it conducted interviews for employment in the occupation. [Contrast this step with posting at a campus recruitment office.]
(E) Trade or Professional Organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification. [This step appears to require print media.]
(F) Private Employment Firms. The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist
of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the application.
(G) Employee Referral Program With Incentives. The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.
(H) Campus Placement Offices. The use of a campus placement office can be documented by providing a copy of the employer's notice of the job opportunity provided to the campus placement office. [The supplementary material in the Federal Register indicates this step is not appropriate for jobs requiring experience. 69 FR 77325 at page 77345.
(I) Local and Ethnic Newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer's advertisement.
(J) Radio and Television Advertisements. The use of radio and television advertisements can be documented by providing a copy of the employer's text of the employer's advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.
Recruitment for Nonprofessional Occupations
The recruitment steps for nonprofessional occupations are:
-(A) the posting - referred to in the regulations as Notice (although DOL indicates the Notice is not actually for recruitment purposes (see discussion at 69 FR 77235 at page 77337-38 and discussion below);
-(B) 2 newspaper advertisements – see advertising requirements below
-(C) 30 day job order with the SWA
The Posting Requirement - NOTICE
All labor certification applications require the employer give notice of the filing of the Application for Permanent Employment Certification and be able to document that notice was provided, if requested by the Certifying Officer. 20 CFR 656.10(d). What is commonly referred to as the posting requirement is, according to the supplementary material in the promulgation, a notice requirement of Section 122(b)(1) of IMMACT 90 requiring notice so that individuals can provide information to DOL bearing on the application such as available workers, wage and working condition issues, etc. 69 FR 77325 at page 77338-9.
The notice must be either to:
- To the bargaining representative(s) (if any) of the employer's employees in the occupational classification for which certification of the job opportunity is sought in the employer's location(s) in the area of intended employment. Documentation may consist of a copy of the letter and a copy of the Application for Permanent Employment Certification form that was sent to the bargaining representative.
- If there is no such bargaining representative, by posted notice to the employer's employees at the facility or location of the employment. The notice must be posted for at least 10 consecutive business days. The notice must be clearly visible and unobstructed while posted and must be posted in conspicuous places where the employer's U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations for posting notices of the job opportunity include locations in the immediate vicinity of the wage and hour notices required by 29 CFR 516.4 or occupational safety and health notices required by 29 CFR 1903.2(a).
In addition, DOL mandates, for the first time, that the employer must publish the notice in any and all in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization. The documentation requirement may be satisfied by providing a copy of the posted notice and stating where it was posted and by providing copies of all the in-house media, whether electronic or print, that were used to distribute notice of the application in accordance with the procedures used for similar positions within the employer's organization. This latter requirement concerning additional locations/media for the posting is new and is discussed in the supplementary material at 69 FR 77325 at page 77338-9.
In a departure from prior practice, in the case of a private household, notice is required only if the household employs one or more U.S. workers at the time the application for labor certification is filed.
Content of Notice – 20 CFR 656.10(d)(3)
The notice of the filing of an Application for Permanent Employment Certification must:
(i) State the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity;
(ii) State any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor;
(iii) Provide the address of the appropriate Certifying Officer; and
(iv) Be provided between 30 and 180 days before filing the application.
For regular filings pursuant to 656.17, the notice must contain the information required for advertisements by 656.17(f) [see below] and must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section. [see above]. It is probably good practice to insert the exact wording of the job title, job description, minimum education and experience requirements, job location, salary, etc., as stated in the ETA 9089 in the Notice (postings).
If an application is filed on behalf of a college and university teacher selected in a competitive selection and recruitment process, as provided by 656.18, the notice must include the information required for advertisements by Sec. 656.18(b)(2) [job title, job duties and requirements], and must include the information required by paragraph (d)(3) [see above]. Salary does not appear to be required in postings for college and university teachers.
If an application is filed under the Schedule A procedures at 656.15, or the procedures for sheepherders at 656.16, the notice must contain a description of the job and rate of pay, and must meet the other requirements 656.10(d)(3) [see above].
PERM at 656.10(e)(1)(i) discusses the right of individuals to submit to the CO documentary evidence bearing on an application for permanent alien labor certification filed under the basic labor certification process at Sec. 656.17 or an application involving a college and university teacher selected in a competitive recruitment and selection process under 20 CFR 656.18. Such documentary evidence submitted under paragraph (e)(1)(i) of that section may include information on available workers, information on wages and working conditions, and information on the employer's failure to meet the terms and conditions for the employment of alien workers and co-workers. The Certifying Officer must consider this information in making his or her determination. In addition any person may submit to the appropriate DHS office documentary evidence of fraud or willful misrepresentation in a Schedule A application filed under Sec. 656.15 or a sheepherder application filed under 656.16. Documentary evidence submitted under paragraph (e)(2) of this section is limited to information relating to possible fraud or willful misrepresentation. The DHS may consider this information under 656.31. The promulgation spends a great deal of time discussing fraud and fraud prevention and 656.31 addresses the consequences of fraud or willful misrepresentation.
Advertisement requirements are the same for professional and nonprofessional jobs. The advertisement must be on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. However, if the job opportunity is located in a rural area of intended employment that does not have a newspaper with a Sunday edition, the employer may use the edition with the widest circulation in the area of intended employment. Documentation of required advertisement can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper.
If the job involved in the application requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Documentation of this step can be satisfied by providing a copy of the page in which the advertisement appeared.
Content of Ad
20 CFR 656.17(f) sets forth the content requirements for advertisements placed in newspapers of general circulation or in professional journals. The ad must include:
(1) Name the employer;
(2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer;
(3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;
(4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;
(5) Not contain a wage rate lower than the prevailing wage rate;
(6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and
(7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.
As discussed in the supplementary material in the promulgation, the advertisement need not contain the wage rate although it is permitted to be in any recruitment media, if desired. The only place the wage rate is required is in the Notice (postings).
Recruitment Report, 20 CFR 656.17(g)
“The employer must prepare a recruitment report signed by the employer or the employer's representative noted in 656.10(b)(2)(ii) describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The CO, after reviewing the employer's recruitment report, may request the U.S. workers' resumes or applications, sorted by the reasons the workers were rejected.”
Although the regulatory language regarding the recruitment report at 20 CFR 656.17(g) is simple, the report will be one of the most significant documents in the process, especially in the event of an audit. The supplementary material to the regulation indicates that fraud prevention and detection is an important component of the PERM process. In the event of an audit, the resumes are likely to be compared to the recruitment report to see if the reasons for rejection are supported by the resumes.
Special Recruitment and Documentation Procedures For College and University Teachers.
Pursuant to 20 CFR 656.18 the special handling procedures for college and university teachers is retained. The application is filed, as with other labor certification applications with DOL but the employer may take advantage of a different method of recruitment.
Although the employer may recruit for college and university teachers under 656.17, it may utilize the alternative procedure in 656.18. If 656.18 is used, the employer must meet an important time constraint Applications for permanent alien labor certification for job opportunities as college and university teachers must be filed within 18 months after a selection is made pursuant to a competitive recruitment and selection process by the college or university in accordance with the institutions specified procedures for faculty selection.
The most important difference in college and university teacher labor certification applications is that the employer need only be able to document the alien was selected for the job opportunity in a competitive recruitment and selection process through which the alien was found to be more qualified than any of the United States workers who applied for the job. The standard, based on Section 212(A)(5)(A)(i)(I) and (ii)(I) of the Immigration and Nationality Act is that there are no “equally qualified” U.S. workers. See also 20 CFR 656.24(a)(2)(ii).
The statute speaks of “teachers” but DOL has maintained that the provision is only applicable to college and university teachers. See discussion at 69 FR 77325 at page 77357 citing a BALCA decision, In the Matter of Dearborn Public School on Behalf of Anthony Bumbaca, (91-INA-222, December 7, 1993) supporting the argument there is a conflict between the DOL regulations and the plain language of the statute. BALCA cited an unpublished decision of the United States District Court for Alaska, Mastroyanis v. U.S. Department of Labor, No. A 98-089 Civil (D.C. AK. May 5, 1989), which found DOL's regulations limiting the application of the ``equally qualified'' standard to college and university teachers and not applying it to a secondary school teacher were in conflict with the plain language of the INA. However, DOL has determined to apply the court's language only within the jurisdiction of the Federal District Court of Alaska.
Documentation of the ``competitive recruitment and selection process'' must include:
(1) A statement, signed by an official who has actual hiring authority from the employer outlining in detail the complete recruitment procedures undertaken; and which must set forth:
(i) The total number of applicants for the job opportunity;
(ii) The specific lawful job-related reasons why the alien is more qualified than each U.S. worker who applied for the job; and
(2) A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien, at the completion of the competitive recruitment and selection process;
(3) A copy of at least one advertisement for the job opportunity placed in a national professional journal, giving the name and the date(s) of publication; and which states the job title, duties, and requirements;
(4) Evidence of all other recruitment sources utilized; and
(5) A written statement attesting to the degree of the alien's educational or professional qualifications and academic achievements.
A college or university that can not or does not choose to satisfy the special recruitment procedures for a college or university teacher under this section may avail itself of the basic process at 656.17. It must still be able to document, if requested by the Certifying Officer, in accordance with 20 CFR 656.24(a)(2)(ii), that the alien was found to be more qualified than each U.S. worker who applied for the job.
Live-in Household Domestic Service Workers. 20 CFR 656.19
As in prior regulations, there are special rules for live-in domestic service workers at 20 CFR 656.19. Discussion of considerations and decisions made with regard to the labor certification process for “live-ins” are in the supplementary material to the promulgation 69 FR 77325 at page 77358. DOL concluded that it should keep the one year paid experience requirement to permit a foreign national to be the subject of labor certification “to ensure the alien knows the demands unique to household domestic service work, has some attachment to the occupation, and will likely continue working in this occupation after arrival in the U.S,” 69 FR 77325 at page 77358.
It is important to note that DOL also reiterated that “[T]his requirement does not correlate to the minimum training and/or experience required to perform the job and should not be shown as a requirement for the job opportunity”, 69 FR 77325 at page 77538.
Applications on behalf of live-in household domestic service occupations are otherwise processed under the normal procedures set forth at Sec. 656.17.
Employers filing applications on behalf of live-in household domestic service workers must provide, in event of an audit, the following documentation:
(1) A statement describing the household living accommodations, including the following:
(i) Whether the residence is a house or apartment;
(ii) The number of rooms in the residence;
(iii) The number of adults and children, and ages of the children residing in the household; and
(iv) That free board and a private room not shared with any other person will be provided to the alien.
(2) Two copies of the employment contract, each signed and dated prior to the filing of the application by both the employer and the alien (not by their attorneys or agents). The contract must clearly state:
(i) The wages to be paid on an hourly and weekly basis;
(ii) Total hours of employment per week, and exact hours of daily employment;
(iii) That the alien is free to leave the employer's premises during all non-work hours except the alien may work overtime if paid for the overtime at no less than the legally required hourly rate;
(iv) That the alien will reside on the employer's premises;
(v) Complete details of the duties to be performed by the alien;
(vi) The total amount of any money to be advanced by the employer with details of specific items, and the terms of repayment by the alien of any such advance by the employer;
(vii) That in no event may the alien be required to give more than two weeks' notice of intent to leave the employment contracted for and the employer must give the alien at least two weeks' notice before terminating employment;
(viii) That a duplicate contract has been furnished to the alien;
(ix) That a private room and board will be provided at no cost to the worker; and
(x) Any other agreement or conditions not specified on the Application for Permanent Employment Certification form.
(3) Documentation of the alien's paid experience in the form of statements from past or present employers (if the foreign national’s only qualifying experience is with the petitioning employer, the application will likely fail because of the general prohibition of using experience gained with the petitioning employer –see discussion below) that sets forth the dates (month and year) employment started and ended, hours of work per day, number of days worked per week, place where the alien worked, detailed statement of duties performed on the job, equipment and appliances used, and the amount of wages paid per week or month. The total paid experience must be equal to one full year's employment on a full-time basis. For example, two year's experience working half-days is the equivalent of one year's full time experience. Time spent in a household domestic service training course can not be included in the required one year of paid experience. Each statement must contain the name and address of the person who signed it and show the date on which the statement was signed. A statement not in English shall be accompanied by a written translation into English certified by the translator as to the accuracy of the translation, and as to the translator's competency to translate.
Labor Certification Determinations. 20 CFR 656.24
Because of the importance of this section of the regulation, the entire section is reproduced here. The regulations at 20 CRF 656.24 state:
“(a) (1) The Chief, Division of Foreign Labor Certification is the National Certifying Officer. The Chief and the certifying officers in the ETA application processing centers have the authority to certify or deny labor certification applications.
(2) If the labor certification presents a special or unique problem, the Director of an ETA application processing center may refer the matter to the Chief, Division of Foreign Labor Certification. If the Chief, Division of Foreign Labor Certification, has directed that certain types of applications or specific applications be handled in the ETA national office, the Directors of the ETA application processing centers shall refer such applications to the Chief, Division of Foreign Labor Certification.
(b) The Certifying Officer makes a determination either to grant or deny the labor certification on the basis of whether or not:
(1) The employer has met the requirements of this part.
(2) There is in the United States a worker who is able, willing, qualified, and available for and at the place of the job opportunity.
(i) The Certifying Officer must consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the
occupation as customarily performed by other U.S. workers similarly employed. For the purposes of this paragraph (b)(2)(i), a U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.
(ii) If the job involves a job opportunity as a college or university teacher, the U.S. worker must be at least as qualified as the alien.
(3) The employment of the alien will not have an adverse effect upon the wages and working conditions of U.S. workers similarly employed. In making this determination, the Certifying Officer considers such things as: labor market information, the special circumstances of the industry, organization, and/or occupation, the prevailing wage in the area of intended employment, and prevailing working conditions, such as hours, in the occupation.
(c) The Certifying Officer shall notify the employer in writing (either electronically or by mail) of the labor certification determination.
(d) If a labor certification is granted, except for a labor certification for an occupation on Schedule A (Sec. 656.5) or for employment as a sheepherder under Sec. 656.16, the Certifying Officer must send the certified application and complete Final Determination form to the employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file all the documents with the appropriate DHS office.
(e) If the labor certification is denied, the Final Determination form will:
(1) State the reasons for the determination;
(2) Quote the request for review procedures at Sec. 656.26 (a) and (b);
(3) Advise that failure to request review within 30 days of the date of the determination, as specified in Sec. 656.26(a), constitutes a failure to exhaust administrative remedies;
(4) Advise that, if a request for review is not made within 30 days of the date of the determination, the denial shall become the final determination of the Secretary;
(5) Advise that if an application for a labor certification is denied, and a request for review is not made in accordance with the procedures at Sec. 656.26(a) and (b), a new application may be filed at any time; and
(6) Advise that a new application in the same occupation for the same alien can not be filed while a request for review is pending with the Board of Alien Labor Certification Appeals.
(f) If the Certifying Officer determines the employer substantially failed to produce required documentation, or the documentation was inadequate, or determines a material misrepresentation was made with respect to the application, or if the Certifying Officer determines it is appropriate for other reasons, the employer may be required to conduct supervised recruitment pursuant to Sec.656.21 in future filings of labor certification applications for up to two years from the date of the Final Determination.
(1) The employer may request reconsideration within 30 days from the date of issuance of the denial.
(2) The request for reconsideration may not include evidence not previously submitted.
(3) The Certifying Officer may, in his or her discretion, reconsider the determination or treat it as a request for review under Sec. 656.26(a).”
There are a number of important changes from prior law embodied in this section of PERM.
- The Notice of Findings procedure in pre-PERM labor certification regulations has been eliminated. The Certifying Officer now must approve, deny, order supervised recruitment pursuant to 20 CFR 656.21 or refer the matter for investigation if possible fraud or misrepresentation is discovered. Other than ordering supervised recruitment, the Certifying Officer will not be offering the opportunity to correct filing deficiencies. It appears that the supervised recruitment process is designed either to satisfy the Certifying Officer that availability of U.S. workers has been properly tested or as “corrective action” for employers who have engaged in a substantial failure to provide required documentation during an audit. 20 CFR 656.20(b). In the latter situation, supervised recruitment can be ordered for all labor certifications filed by that employer for up to 2 years. See discussion of Audits below.
- The definition of able and qualified worker has been expanded from pre-PERM regulations to include a “worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.” 20 CFR 656.24(b)(2)(i). The supplementary material in the
promulgation, 69 FR 77325 at page 77350 states, '' This corollary has been affirmed at the circuit court level in Ashbrook-Simon Hartley v. McLaughlin, 863 F.2d 410 (5th Cir. 1989), which stated DOL ``can discount * * * job requirements listed by the employer which constitute skills * * * which can be acquired during a reasonable period of on-the job training.'' There is no definition as to what is considered “a reasonable period”. The reader is encouraged to read the supplementary material concerning this important change and other issues discussed in this article.
- A new application can be filed at any time after a denial is final. A denial is not final if it is on reconsideration or appeal to BALCA. Pre-PERM regulations prohibited a new filing for 6 months after final decision.
- The employer may request reconsideration of the Certifying Officer’s decision. The Certifying Officer can make a decision on the request for reconsideration or treat it as an appeal to BALCA under 656.26.
Audit Process and Procedures. 20 CFR 656.20
The CO may determine the application requires an audit and certain applications may be selected randomly for audit and quality control purposes. The audit letter will:
(1) State the documentation that must be submitted by the employer;
(2) Specify a date, 30 days from the date of the audit letter, by which the required documentation must be submitted. One 30 day extension of time to respond to the audit letter may be granted by the Certifying Officer in his or her discretion. Caution is advised if the request is made and no extension notice has been received. In that case it is clearly best practice, if not required practice, to respond within the initial 30 days.
(3) Advise that if the required documentation has not been sent by the date specified the application will be denied.
A failure to provide the documentation in a timely manner constitutes a refusal to exhaust available administrative remedies and BALCA review may not be used in that case.
The regulation, at 656.20(b) states that “substantial failure by the employer to provide required documentation will result in that application being denied Sec. 656.24 under [sic] and may result in a determination by the Certifying Officer pursuant to Sec. 656.24 to require the employer to conduct supervised recruitment under Sec. 656.21 in future filings of labor certification applications for up to 2 years.” What is substantial failure?
After response to the audit letter is received or while an application is pending but no audit letter is issued by the CO, the CO may:
(1) Request supplemental information and/or documentation; or (2) Require the employer to conduct supervised recruitment under 656.21
What is the difference between an audit letter under 20 CFR 656.20(a) and a request for supplemental information and/or documentation? Is this a distinction without a difference? It appears that in either case, only the employer will receive the notice.
Supervised Recruitment. 20 CFR 656.21
As indicated in other sections of this article, the CO may order post-filing supervised recruitment where the CO determines it appropriate. It is unclear to this author, at the time of writing, whether the supervised recruitment the CO may order for up to 2 years under 20 CFR 656.24(f) requires the employer to conduct regular pre-filing recruitment if the employer is under an “order” of supervised recruitment.
The requirements for supervised recruitment are somewhat different than pre-filing recruitment requirements. Supervised recruitment requires advertising for the job opportunity by placing an advertisement. The CO will direct where the advertisement is to appear in a newspaper of general circulation or in a professional, trade, or ethnic publication, and any other measures required by the CO. If the ad is directed to be placed in a newspaper of general circulation, the advertisement must be published for 3 consecutive days, one of which must be a Sunday. If placed in a professional, trade, or ethnic publication, the advertisement must be published in the next available published edition.
The employer must supply a draft advertisement to the CO for review and approval within 30 days of being notified that supervised recruitment is required.
The advertisement must:
(i) Direct applicants to send resumes or applications for the job opportunity to the CO for referral to the employer;
(ii) Include an identification number and an address designated by the Certifying Officer;
(iii) Describe the job opportunity;
(iv) Not contain a wage rate lower than the prevailing wage rate;
(v) Summarize the employer's minimum job requirements, which can not exceed any of the requirements entered on the application form by the employer;
(vi) Offer training if the job opportunity is the type for which employers normally provide training; and
(vii) Offer wages, terms and conditions of employment no less favorable than those offered to the alien.
The employer must notify the CO when the advertisement will be placed.
The Certifying Officer may designate other appropriate sources of workers from which the employer must recruit for U.S. workers in addition to the advertising .
The recruitment report to be provided the CO must be a signed, detailed written report of the supervised recruitment, signed by the employer or the employer's representative. It must be provided within 30 days of the CO's request for such a report.
The recruitment report must:
(1) Identify each recruitment source by name and document that each recruitment source named was contacted. This can include, for example, copies of letters to recruitment sources such as unions, trade associations, colleges and universities and any responses received to the employer's inquiries. Advertisements placed in newspapers, professional, trade, or ethnic publications can be documented by furnishing copies of the tear sheets of the pages of the publication in which the advertisements appeared, proof of publication furnished by the publication, or dated copies of the web pages if the advertisement appeared on the web as well as in the publication in which the advertisement appeared.
(2) State the number of U.S. workers who responded to the employer's recruitment.
(3) State the names, addresses, and provide resumes (other than those sent to the employer by the CO) of the U.S. workers who applied for the job opportunity, the number of workers interviewed, and the job title of the person who interviewed the workers. This is different than standard pre-filing recruitment where, unless requested by the CO, names of applicants and their resumes need not be provided.
(4) Explain, with specificity, the lawful job-related reason(s) for not hiring each U.S. worker who applied. Rejection of one or more U.S. workers for lacking skills necessary to perform the duties involved in the occupation, where the U.S. workers are capable of acquiring the skills during a reasonable period of on-the-job training, is not a lawful job-related reason for rejecting the U.S. workers. For the purpose of this paragraph (e)(4), a U.S. worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.
The application will be denied unless the employer supplies the CO with the required documentation or information within 30 days of the date of the request. An extension of time to provide the documentation required can be authorized by the CO. Again, in the case notification of an extension has not been received is clearly best practice, if not required practice, to respond within the initial 30 days.
Validity of and Invalidation of Labor Certifications. 20 CFR 656.30
A labor certification is valid indefinitely except that after issuance, a labor certification may be revoked by ETA using the procedures described in 20 CFR 656.32. Additionally, after issuance, a labor certification is subject to invalidation by the DHS or by a Consul of the Department of State upon a determination, made in accordance with those agencies' procedures or by a court, of fraud or willful misrepresentation of a material fact involving the labor certification application. If evidence of such fraud or willful misrepresentation becomes known to the CO or to the Chief, Division of Foreign Labor Certification, the CO, or the Chief of the Division of Foreign Labor Certification, as appropriate, shall notify in writing the DHS or Department of State, as appropriate. A copy of the notification must be sent to the regional or national office, as appropriate, of the Department of Labor's Office of Inspector General.
The priority date for labor certifications filed with DOL is the date the ETA application processing center date-stamped the application or the date an electronically filed application was submitted.
The priority date for a Schedule A occupation is the date the application was dated by the Immigration Officer.
A labor certification for a Schedule A occupation is valid only for the occupation set forth on the Application for Permanent Employment Certification form but is valid throughout the United States unless the certification contains a geographic limitation.
A labor certification involving a specific job offer is valid only for the particular job opportunity and for the area of intended employment stated on the Application for Permanent Employment Certification form.
The procedure for obtaining a duplicate labor certification has been changed and is set forth at 20 CFR 656.30(e). The CO will still only issue a duplicate labor certification to a Consular or Immigration Officer but the request can now be initiated not only by a Consular or Immigration Officer but also at the written request of an alien, employer, or an alien's or employer's attorney/agent. The request must be addressed to the CO who issued the labor certification; must include documentary evidence from a Consular or Immigration Officer that a visa application or visa petition, as appropriate, has been filed; and must include a Consular Office or DHS tracking number.
Please note the provision discussed below for revoking an approved labor certification. Also note that such revocation contains no time limit.
Labor Certification Applications Involving Fraud or Willful Misrepresentation. 20 CFR 656.31
If possible fraud or willful misrepresentation involving a labor certification is discovered before a final labor certification determination; the Certifying Officer will refer the matter to the DHS for investigation, and must send a copy of the referral to the Department of Labor's Office of Inspector General. If 90 days pass without the filing of a criminal indictment or information, or receipt of a notification from DHS, DOL OIG, or other appropriate authority that an investigation is being conducted, the Certifying Officer may continue to process the application. However, see discussion of revocation below.
If DOL learns an application is the subject of a criminal indictment or information filed in a court, the processing of the application must be halted until the judicial process is completed. The Certifying Officer must notify the employer of this fact in writing and must send a copy of the notification to the alien, and the Department of Labor's Office of Inspector General.
If a court finds there was no fraud or willful misrepresentation, or if the Department of Justice decides not to prosecute, the Certifying Officer shall decide the case on the merits of the application.
If a court, the DHS or the Department of State (DOS) determines there was fraud or willful misrepresentation involving a labor certification application, the application will be considered to be invalidated, processing is terminated, a notice of the termination and the reason therefore is sent by the Certifying Officer to the employer, attorney/ agent, as appropriate, and a copy of the notification is sent by the Certifying Officer to the alien and to the Department of Labor's Office of Inspector General. Note that there are no standards set for the determination by DHS or DOS.
Revocation of Approved Labor Certifications. 20 CFR 656.32
Perhaps the most troubling aspect of the PERM regulation, if not the one most likely to cause practitioner’s a problem is the open ended ability of DOL to revoke an approved labor certification
The CO in consultation with the Chief, Division of Foreign Labor Certification may take steps to revoke an approved labor certification, if s/he finds the certification was not justified. What kind of legal standard is “not justified”? There is no time limit of any sort regarding when a revocation can be started. What is the effect of a revocation if the foreign national already has achieved permanent residence? What will the courts do with challenges to this procedure and the procedure in 20 CFR 656.30(d) allowing DHS or DOD to make a determination of fraud? What will be DOS and DHS procedures in making that finding of fraud and notifying DOL?
DOL has set forth procedures for revocation requiring the CO send the employer a Notice of Intent to Revoke an approved labor certification containing a detailed statement of the grounds for the revocation and the time period allowed for the employer's rebuttal. The employer may submit evidence in rebuttal within 30 days of receipt of the notice. The CO must consider all relevant evidence presented in deciding whether to revoke the labor certification. Note that no notice goes to the foreign national beneficiary of the labor certification. What motivation will the employer have to respond if the alien has ported under AC 21 to a new job? Of course, the responsible employer, particularly one with multiple applications pending or contemplated, should respond. But, if the employer did not retain counsel (perhaps because the foreign national retained and paid counsel for the application process) and is not interested in retaining counsel, the foreign national may have no input and the employer’s response may be limited, at best.
If rebuttal evidence is not filed by the employer, the Notice of Intent to Revoke becomes the final decision of DOL.
If the employer files rebuttal evidence and the CO determines the certification should be revoked, the employer may file an appeal to BALCA under 20 CFR 656.26
Once the revocation process starts there is a time limit for decision. The CO must inform the employer within 30 days of receiving any rebuttal evidence of the decision. Copies of the revocation are to be sent by the CO to DHS and DOS.
Obviously, an employer and counsel should retain copies of all documents required in the event of an audit, but for how long.
IMPORTANT ISSUES DISCUSSED IN THE PROPOSED RULE
The supplementary material in the promulgation 69 FR 77325 at page 77338 states, “It is longstanding DOL policy that the employer may offer a wage range as long as the bottom of the range is no less than the prevailing rate. See page 114 of Technical Assistance Guide No. 656 Labor Certifications (TAG). However, the prevailing wage, which provides the floor for the wage range, must be the prevailing wage at the time the recruitment was conducted for the application for which the employer is seeking certification, not the prevailing wage when the alien beneficiary was initially hired.”
Definition of Professional and Nonprofessional Occupations
The supplementary material in the promulgation 69 FR 77325 at page 77345 discusses the definition of professional occupation. DOL stated, “To set the standard between professional and nonprofessional based on whether the person has a bachelor's degree or not is arbitrary and does not reflect the real world or take into account individuals who have gained professional expertise through work experience instead of education.
If the occupation involved in the application is listed on Appendix A the employer simply follows the recruitment requirements for professional occupations at Sec. 656.17(e)(1). For all other occupations employers can simply recruit under the requirements for nonprofessional occupations at Sec. 656.17(e)(2). Schedule A was promulgated with the PERM regulation at 69 FR 77325, pages 77377-77384 will not be reproduced as part of the recitation of the regulation in the Code of federal regulations. I have attached the Appendix as well as a copy of the ETA 90879 at the end of the article for ready reference.
DOL also states, “We have never determined in administering the permanent labor certification program what work experience or combination of work experience and education is equivalent to a bachelor's or higher degree.( 69 FR 77325 at p 77346)
This discussion is somewhat helpful regarding applications where the employer requires a bachelors degree and the foreign national qualifies based on experience or a combination of education and experience. It puts the issue with immigration where the decision will be made as to equivalency. Note that in the EB 3 situation, the application, practitioners must determine what the actual educational requirements are for the position to avoid being in a position of not being able to prove the equivalent where the attainment of the degree is not determinative of Employment Based Third Preference eligibility. Employment Based Third Preference includes skilled occupations as well as those with a Bachelors degree.
The recruitment for any job listing a bachelors or above educational minimum requirement should clearly meet the additional requirement s for professional occupations.
“We have every indication the DHS will continue to make preference classifications according to the job requirements that have been entered on the application for the certified job opportunity. Employers will still be free to provide supporting documentation to the DHS during the petition process, as they do now, to demonstrate the alien's work experience is equivalent to a bachelor's or higher degree if they have specified such on the Application for Permanent Employment Certification.” 69 FR 77325 at page 77346
Business Necessity Standard and Job Duties
The NPRM proposed retention of the current standard that the employer's job requirements must be those normally required for jobs in the United States and the employer's job requirements must not exceed the number of months or years of training, education and/or experience defined for the SVP level assigned to the occupation as shown in the O*NET.
The NPRM also sought to modify the current regulations by eliminating the use of business necessity to justify requirements not normal for the occupation. The NPRM instead proposed that job requirements other than the number of months or years of training, education and/or experience in the occupation would not be permitted unless it could be shown that the employer employed a U.S. worker to perform the job opportunity with the special requirements within 2 years of the filing date of the application, or the special requirements are normal to the occupation.
However, after receiving extensive opposition to such limitations, DOL decided to retain the existing Business Necessity Standard enunciated by BALCA in Information Industries (88-INA-92, February 9,1989) (en banc). This final rule provides in 656.17(h)(1) that to establish business necessity an employer must demonstrate 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. DOL stated, “This final rule also clarifies our long-held position that the necessity standard should be retained in the permanent labor certification program. For the past 25 years, we have permitted employers to use specialized job requirements as long as they could demonstrate their importance to the performance of the job. The administrative difficulties associated with implementation of the business necessity test, although problematic, do not form a sufficient basis for depriving employers of their ability to address legitimate business requirements,” 69 FR 77325 at page 77351.
Although the retention of the Information Industries standard is a recognition by DOL of the realities of the business world, the question is now presented as to how practitioners must answer question 12 of Section H on the ETA 9089. If the job duties require use of business necessity to justify education and/or experience requirements beyond those the O*NET indicates are appropriate, it would appear that the question, “Are the job opportunity’s requirements normal for this occupation”, must be answered “Yes”. This would appear to be a “flag” for audit since the employer would have to justify the business necessity of the requirements.
The practitioner and employer risk a finding of fraud or willful misrepresentation, if the question is answered “No” and DOL audits the application and determines the job opportunity’s requirements are not normal to the occupation.
As pointed out by Gary Endelman, Esq., in his article 10 Key Questions On PERM, appearing on ILW.com, January 2005, DOL in the PERM promulgation seems to use the terms “job” and “occupation” in, at best, a careless manner. Since neither term is defined, we are left with serious questions. If occupation means the same as the job as it exists at the applying employer’s business, the decision is easier. Personally, at this point, I do not believe that is DOL’s interpretation. I think DOL is more likely to believe it is using the term “occupation” as it appears in its most generic form in O*NET. See discussion below.
A related issue involves the job duties description. DOL states, “The O*NET job zones will show the SVP level assigned to the occupation. This final rule provides the job opportunity's duties and requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the SVP level assigned to the occupation as shown in the
O*NET job zones. While O*NET may arguably contain broader occupational categories than the DOT [Dictionary of Occupational Titles], COs have traditionally exercised their judgment in determining whether the job requirements are normally required for the occupation involved in the employer's application and in applying the SVP to specific case situations, and they will continue to make such judgments with O*NET. Employers should be aware that job duties and requirements other than those normal for the occupation must be supported by evidence of business necessity and such evidence will be required in an audit.” 69 FR 77325 at page 77351.
Foreign Language Requirement
PERM’s treatment regarding requiring ability in a foreign language provides some good news. There is a change for the better. The regulation adds the need to communicate with co-workers or subordinates to the ways of justifying business necessity for a foreign language requirement. In addition DOL indicates there are working environments where safety considerations would support a foreign language requirement. The discussion of this issue in the supplementary material in the promulgation appears at 69 FR 77325 at page 77352. The regulatory language appears at 20 CFR 656.17 (h)(2) and states:
“A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following:
(i) The nature of the occupation, e.g., translator; or
(ii) The need to communicate with a large majority of the employer's customers, contractors, or employees who can not communicate effectively in English, as documented by:
(A) The employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and
(B) A detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign- language-speaking customers, employees, and contractors can not communicate in English.”
The ETA 9089 requires answering question H. 13. in the affirmative and this is a likely audit trigger.
DOL retained the existing standard and sets the requirements for justifying so-called combination occupations. The promulgation states, “Therefore, this final rule continues the current standard in Sec. 656.17(h)(3). Combination occupations can be justified in the same way as is presently required for a combination of duties, i.e., the employer must prove it has normally employed persons for that combination and/or workers customarily perform the combination in the area of intended employment and/or the combination job opportunity is based upon a business necessity.” 69 FR 77325 at page 77352.
Alternative Experience Requirements
In an extensive discussion of the issue, DOL indicates it adopted the standard set forth in the BALCA decision, Matter of Francis Kellogg, (94-INA-465, February 2, 1998) (en banc). DOL stated, “Under Sec. 656.17(h)(4) of this final rule, an employer may specify alternative requirements provided the alternative requirements meet the criteria set forth by BALCA in the Kellogg case. In Kellogg, BALCA indicated that alternative requirements and primary requirements must be substantially equivalent to each other with respect to whether the applicant can perform the proposed job duties in a reasonable manner.…”
Therefore, even when the employer's alternative requirements are substantially equivalent but the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, the alternative requirements will be considered unlawfully tailored to the alien's qualifications unless the employer has indicated that applicants with any suitable combination of education, training or experience are acceptable”, 69 FR 77325 at page 77353.
There appears to be a contradiction between that discussion and the actual regulatory language. The regulation at 20 CFR 656.17 (h)(4) states:
“(i) Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity for which certification is sought; and
(ii) If the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable.” [emphasis added]
The regulation distinguishes situations where the foreign national is already employed by the petitioning employer from those where that is not the case. Contrast that with the supplementary material to the promulgation cited above.
Actual Minimum Requirements – Experience Gained With the Employer
Under the NPRM, employers would be prohibited without exception from requiring any experience gained by the alien while working for the employer in any capacity, including working as a contract employee or for an overseas affiliated company. There is some good news in the final promulgation. DOL discusses 3 aspects of the issue of experience gained with the employer while rejecting the holding of
While rejecting the complexity of BALCA in Delitizer Corp. of Newton (88-INA-482, May 9, 1990) (en banc), DOL concluded that that “some modification to the NPRM should be made to accommodate the legitimate interests of the business community.” 69 FR 77325 at 77353-54. DOL concluded it could reconcile competing considerations by allowing the employer to show the alien was hired in or contracted to work in a different job for the employer, but the employer must prove the job in which the alien gained the experience is not substantially comparable to the job for which certification is being sought, 20 CFR 656.17(i). DOL defined “`substantially comparable'' job or position as a “job or position requiring performance of the same job duties more than 50 percent of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.” 20 CFR 656.17(i)(5)(i).
Infeasibility to Train
DOL stated, “With respect to the second exception, we note the ``infeasibility to train'' argument is rarely claimed in practice. Consequently, we have concluded the reinstatement of this exception in this final rule will have little programmatic or operational impact, would acknowledge the legitimate interests of the business community, and would not be inconsistent with our longstanding interpretation of our statutory mandate.” 69 FR 77325 at page 77354 incorporated in the regulation at 20 CFE 656.17(i)(3)(ii).
Definition of Employer
The determination of whether experience was gained with the petitioning employer received extensive consideration by DOL and it concluded that the definition in the NPRM was too narrow. It declined to adopt the definition of ``employer,'' as defined by BALCA in Matter of Haden, Inc. (88-INA-245, August 30, 1998). The final rule at 20 CFR 656.17(i)(5)(i) provides an employer is ``an entity with the same Federal Employer Identification Number (FEIN), provided it meets the definition of an employer at Sec. 656.3.'' The simpler definition will be easier to administer and strikes an appropriate balance between the legitimate interests of the U.S. business community and DOL's statutory mandate to protect U.S. workers.
There is a caution point in this definition. As indicated above, attempt to refile a pending labor certification under PERM requires the job opportunity be identical including the identity of the employer. The FEIN is an issue of identity.
Layoffs by the Employer
The NPRM provided that, if there has been a layoff by the employer-applicant in the area of intended employment within 6 months of filing the application, either in the occupation for which certification is sought or in a related occupation, the employer must document 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. DOL discussed five related issues in the promulgation at 69 FR 77325 at pages 77354-55.
Industry and Statewide Layoffs
Under this final rule, 20 CFR 656.17(k),the employer-applicant is required to document it has notified and considered only those workers it laid off, not those workers laid off by other employers. The employer must attest on the application form to whether it has laid off employees in the occupation involved in the application in the past 6 months.
Knowledge of Layoffs
The employer must attest on the application whether it has laid off workers in the occupation in the 6 months immediately prior to filing the application. DOL also indicated “our program experience has shown that COs are able to determine whether an employer has laid off workers by relying on various sources of information such as Worker Adjustment and Retraining Notification (WARN) notices, newspaper articles, and internet search tools.”
Laid-off U.S. Workers
The final rule requires the employer to document only that it notified and considered potentially qualified U.S. workers. Employers must document they offered the position to those laid-off workers who are able, willing, and qualified for the job opportunity and the results of their consideration of such workers.
DOL did not add a provision it considered requiring consulting firms to document that they are not referring workers to a place of employment at which U.S. workers have been laid off from similar positions. DOL concluded such a marked departure from current policy and practice should be the subject of another NPRM before it is implemented. DOL indicated it will consider it in future rulemaking to amend the permanent labor certification program.
Definition of Related Occupation
DOL discussed the relationship between “employment in a different but related occupation”, as defined in Sec. 656.17(k), and conclude it was not inconsistent with Sec. 656.17(i)'s limits on experience gained with the petitioning employer. It said these two sections have distinctly different purposes. Section 656.17(k) addresses the qualifications of U.S. workers laid off by the employer-applicant. Section 656.17(i), on the other hand, addresses the qualifications of the alien beneficiary and is designed to prevent an employer from providing the alien beneficiary with training opportunities not offered to U.S. workers.
DOL indicated the regulation does not state workers in a related occupation are qualified for the job opportunity, only the employer must notify those workers and consider whether they are qualified. Similar to the determinations that have to be made under 656.17(g) and 656.24(a)(2)(i), a U.S. worker will be deemed qualified only if the worker, by education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed; or if the U.S. worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training. If audited, an employer may be required to document the lawful job-related reasons for not hiring U.S. workers laid off in a related occupation for the job opportunity for which certification is sought.
Definition of Layoff
For the purposes of 656.17(k), a layoff is any involuntary separation of one or more workers without cause or prejudice. This definition includes, but is not limited to, personnel actions characterized by an employer as reductions-in-force, restructuring, or downsizing.
Alien Influence and Control Over the Job Opportunity
The NPRM provided that, if the employer is a closely held corporation or partnership in which the alien has an ownership interest, or if there is a familial relationship between the stockholders, corporate officers, incorporators, or partners and the alien, the employer must furnish documentation that would allow the CO to determine whether the job has been and is clearly open to U.S. workers. The promulgation discusses the considerations in promulgating the final provisions covering this issue at 20 CFR 656.17(l). These include:
(a) number of employees
DOL added the Modularsesa Modular Container Systems (89-INA-228, July 16, 1991) (en banc) criterion of whether the alien is one of a small number of employees
(b) familial relationship between alien and employer
DOL said “we will evaluate the totality of the employer's circumstances, using the Modular Container Systems criteria listed in the preamble to the proposed rule (see 67 FR at 30474). No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling.”
(c) Ability To Pay the Salary for the Position
DOL indicated, “we believe the employer's obligation to document and attest that the job is open to U.S. workers provides the CO with sufficient basis to inquire whether an employer is able to pay the offered salary and to place the alien on the payroll and to deny the application on the basis that the job is not truly open to U.S. workers if the employer does not furnish the appropriate documentation. We also noted DHS will assess the employer's financial status as part of the immigrant visa process, and we do not see a need to request duplicative information from the employer.” 69 FR 77325 at page 77356.
Definition of the Standard Vocational Preparation and Educational Equivalents
Minimum education and experience requirements must be those normally required for the occupation and not exceed the Specific Vocational Preparation level indicated as shown in O*NET job zones. Unless justified by business necessity, requirements above the O*NET indicted level will be result in a denial of the labor certification application. [Note: The supplementary material to the promulgation, 69 FR 77325 at page 77332 speaks of Standard Vocational Preparation while the regulation speaks of Specific Vocational Preparation, 20 CFR 656.3. It is believed this was merely a drafting error in the supplementary material].
“ Specific vocational preparation (SVP) means the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. Lapsed time is not the same as work time. For example, 30 days is approximately 1 month of lapsed time and not six 5-day workweeks, and 3 months refers to 3 calendar months and not 90 work days. The various levels of specific vocational preparation
are provided below.:
1............................... Short demonstration.
2............................... Anything beyond short demonstration up
to and including 30 days.
3............................... Over 30 days up to and including 3
4............................... Over 3 months up to and including 6
5............................... Over 6 months up to and including 1
6............................... Over 1 year up to and including 2
7............................... Over 2 years up to and including 4
8............................... Over 4 years up to and including 10
9............................... Over 10 years.
“The promulgation indicates that the Employment and Training Administration (ETA) plans to utilize the guidance provided in the administrative directive Field Memorandum No. 48-94, issued May 16, 1994, Subject: Policy Guidance on Labor Certification Issues (FM). In summary, the FM provided that a general associate's degree is equivalent to 0 years SVP, a specific associate's degree is equivalent to 2 years; a bachelor's degree is equivalent to 2 years; a master's degree is equivalent to 4 (2 + 2) years; and, a doctorate is 7 (2 + 2 + 3) years.
“The Dictionary of Occupational Titles (DOT) will no longer be consulted to determine whether the training and experience requirements are normal; O*NET will be used instead. It should be noted, however, the job opportunity's job requirements, unless adequately arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation assigned to the occupation as shown in the O*Net Job Zones. More information about O*NET, including the O*NET job zones can be found at http://online.onetcenter.org/.” 69 FR 77325 at page 77332.
Substitution of Alien Beneficiaries
The proposed regulations would conform the provisions of 20 CFR 656.30(c) to the decision of the U.S. Court of Appeals for the District of Columbia in Kooritzky v. Reich, 17 F.3rd 1509 (DC Cir. 1994) and DOL's operating practice after the U.S. Court of Appeals decision striking down the no substitution rule. DOL indicated it will be exploring in the near future regulatory solutions to address this issue. DOL plans to implement the measures described in this final rule to check the bona fides of the employer applicant.
© 2005 Edwin R. Rubin, Esq.
is a partner in the Newark, New Jersey firm, Rubin & Dornbaum. The firm's practice is limited to immigration and nationality law with special emphasis on corporate and employment based immigration matters. Mr. Rubin's practice has been limited to immigration and nationality matters for over 32 years. He served as National President of the American Immigration Lawyer's Association (AILA) in 1990-91 and has been a member of AILA's Board of Governors since 1982. He served as AILA Chapter Chair in both Philadelphia and New Jersey. Mr. Rubin is currently Vice President of the New Jersey Immigration Policy Network, Inc. He was Senior Editor of and Contributing Author to, "Immigration & Nationality Law," AILA, (two volumes annually), 1985-1990 and has been Editor Emeritus since 1990. He was appointed by the U.S. Secretary of Labor to serve two terms as one of the sixteen members of the Federal Advisory Committee on the Immigration Nursing Relief Act of 1989. He was the 1993 recipient of AILA's Edith Lowenstein Memorial Award for Excellence in Advancing the Administrative Practice of Immigration Law and recipient of the 2001 AILA Mentor Award. He established the AILA Mentor program during his term as AILA President. Mr. Rubin is a frequent author and lecturer on immigration issues. He is listed in the "Martindale-Hubbell Bar Register of Preeminent Lawyers", "Best Lawyers in America", "An International Who's Who of Corporate Immigration Lawyers" and "Superlawyers".