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Solving Today's PERM Puzzle

by H. Ronald Klasko, et al.

Editor's Note: The following are the materials for this seminar.

Citations for ILW.COM's Seminar
"Solving Today's PERM Puzzle"
Session 3 held on July 14, 2005

For more info, or to signup online, click here.
For more info, or to signup by fax, click here.

From Edward Litwin

INA§ 212(a)(5) 4 categories of reasons for rejecting U.S. applicants (able, willing, available and qualified).

INA§ 656.24(b)(2)(ii) [Old Regulation] “The Certifying Officer shall consider a U.S. worker able and qualified for the job opportunity if the worker, by education, training, experience, or a combination thereof,…”

INA§ 656.24(b)(2)(i) [PERM Regulation] “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,…”

Mindcraft Software, Inc., [BALCA 90-INA328 (October 2, 1991)]- A U.S. applicant is qualified if with a nominal period of on-the-job training, s/he could perform the duties, even if s/he does not possess all the stated qualifications.

Ashbrook-Simon-Hartley v. McLaughlin [863 F.2nd 410 (5th Cir.1989)] In addition to meeting the specific requirements, the U.S. applicant must be able to perform the job duties.

INA§ 656.17(g)(2) & INA§656.24(b) Incorporates “reasonable training” language from relevant BALCA cases.

INA§ 656.17(g)(1) The 4 items required in the employer’s recruitment report:

  • A description of the recruitment steps taken;
  • The results achieved;
  • The number of people hired;
  • The number of U.S. workers rejected.

PERM Guidebook for Foreign Labor Certification, “Documentation Requirements Under PERM, General Recruitment Documentation: The Recruitment Report,” Lexus Nexis p.8-5f


One of the panelists indicated that a PO Box for the employer may result in a denial. The employer registered with an address and then a PO Box on C. 2 Address Line #2. Since this is a pre- fill line on the Form 9089, should the employer revise their address or can they?

Should a paralegal be the user on the account or the attorney. One of the employers registered our paralegal as a user so that name is prefilled under attorney section. The form does allow you to change the name. Is this okay?

#A. 1. Regarding using the priority date from the previously filed labor certification. Our Romanian client has a son aging out in July, 2006, so we need to file the I-140 asap and thus the client is electing to file for PERM. He has a pending labor certification in Dallas and has returned the 45-day letter. We are assuming we answer the #A.1. "no" since the priority date is not an issue for Romania now. Would you agree?

Answer by Steven A. Clark:

1) Only employer can change this.

2) I recommend registering attorneys only for this reason.

Answer by Ron Klasko:

1) We would suggest revising the registration. The employer would have to do this.

2) Only the attorney should be listed as a user.

3) If the new filing is "identical", the answer should be "yes"; otherwise, "no."


As it appears that the FORM 9089 had addressed the "special handling" cases, can we assume that the recruitment set forth in the old regs still applies? ie; a "competitive recruitment process" used at the educational institution? But should they be filed the same way that the regular PERM apps are being filed through the webbased system?

Answer by Ron Klasko:



Does the employer contact name listed on item D 1. have to be the same name as the Employer Declaration person under N1&2. ? For example, I represent a large corporation which has authorized its managers to sign the ETA 750 A's in the past. These people are different from the employer contact and are the individuals most familiar with the positions and duties since they manage the individual beneficiaries.

If the PERM position is for a programmer, but the person gained the experience with another employer as a Software Engineer or Programmer Analyst, would you then answer Yes to H.10 and No item J. 18. But if you list these as acceptable alternative occupations would the answer to H.10 then be Yes since they are acceptable alternatives. Along the same line of questions as to alternatives, in the IT industry if you list acceptable alternative occupations do you then have to mark yes to question H.8. is there an alternate combination of education and experience that is acceptable. During the teleconference yesterday it was mentioned that if you listed alternative occupations under H.10, then you had to answer yes to H.8. Please clarify.

Answer by Ron Klasko:

1) No.

2) We would suggest answering "No" to H.8. If possible, you could have a more expansive "job offer" that would cover the experience gained and eliminate the need for an alternative occupation. Otherwise, you would need to answer "Yes" to H.10. J.18 would then be answered "N/A."


Regarding the radio ads. How many spots are required? and is there some specific requirement about the frequency? meaning AM or FM?

If prevailing wage is determined after the ads were placed, is there a risk of denial?

How many days are required for the web site ads to be placed? (for both, the company's and the other one)

We placed a job order with the One Stop Center office but few days later we noticed that there was a mistake in the O*Net Code. We had to request a new prevailing wage determination and got a higher wage. Therefore, we had to place a new job order with the One Stop Center office. What should we do with the first job order we placed?

Answer by Ron Klasko:

1) This issue is not addressed in the regulations or in any guidance. Tammy recently had a PERM case certified where one of the professional ads was placed on the radio for one airing at normal drive time on an all news station.

2) No.

3) Although there is no guidance on this point, I would suggest that the posting on the employer website be for at least 30 days and the internet advertising be for at least one week.

4) Nothing needs to be done with the first job order.


Are online filed applications being summarily denied? In other words, is no reason being provided for the denials, and if so, how does one challenge a denial on appeal without identification of the issues?

Answer by Ron Klasko:

Written decisions with reasons for denial are being issued. But the statement of reasons will be preceded by a summary denial with explanation to follow. The explanation may only cite the part of the rule which was not complied with and may not describe how the rule was not met with specificity.


We have question about grandfathering prior RIR instead of converting to PERM. since the prior RIR is subject to 245(i) and client changes the employer. On the secion A, question 1. can we answer "yes" and put prior filing date? if so, would it be treated as converting and either get denied or withdraw the prior RIR and lose priority date.

Answer by Ron Klasko:

Filing a new application should not result in loss of grandfathered status even if the entire application is withdrawn. If the new filing is "identical", the question needs to be answered "yes" and the previous petition will be considered withdrawn. If it is not "identical", it is presently unknown whether the Department of Labor will withdraw the previous case


I am confused about the scope of atty to represent employer. Can the atty file 9089 initially prior or after employer registration? I beleive that only employer is permitted to register to use the Permanent On line System. Does this mean that the employer must open a registration account with PERM directly from the company computer, before atty files the 9089, and does it also mean that attys have to train the employer designated agent at work in requesting registration?

Answer by Ron Klasko:

The attorney can file the 9089 form after the employer registers. The attorney may need to train the employer regarding registration.


What recruitment is required when we are asking only for 2 years of experience but as an alternate educational requirement, we allow for a bachelor's degree (and no experience)? Are we required to do the recruitment for a professional position, or will 2 Sunday ads suffice?

Answer by Ron Klasko:

If the position is not on the list of professional positions, and if a Bachelors degree is not a minimum requirement but an alternate requirement, the recruitment for "professional positions" should not apply. The determination of whether or not the 3 steps are required depends not on what the employer requires, but what DOL deems the normal requirement to be for the occupation.


Could you please quote the four questions that PERM Dept ask's the employer via telephone?

Answer by Edward Litwin:

In the early stages of the PERM application processing, there is a sponsorship check which involves an email sent to the employer only-not the attorney-asking four questions of the employer. The questions are:

  1. Are you, or do you work for, the employer referenced above?
  2. Are you aware that an Application for Permanent Employment Certification was filed on your behalf?
  3. Do you have an opening for a (job title) in (location)?
  4. Are you sponsoring (worker's name) for this position?
Note: The email also references the position by the OES title.

Failure to respond promptly to these questions will result in a phone call from DOL on which a DOL representative will ask the four questions. The employer's contact person will need to be able to take the call and communicate in English.


I noted with interest the comment from one of the panel declaring that if the alien is in the US on an E-2 Visa, it is likely to lead to an audit - presumably because DOL feel that an investor running a business would not seek to take up employment elsewhere.

I have several questions in this respect and thank you in advance for your kind attention:

1) Can you clarify that all E-2 status applicants WILL get audited - or is this just an opinion. Have there been any such cases?

2) Why is this a potential problem in the first place? Surely an Investor could be at a point in his life where he no longer wishes to be a business owner with all the inherent responsibility and wishes to take an employment position elsewhere.

3) What about E-2 spouses (that may or may not have an A18 EAD). Would an E-2 spouse run into the same problems? Does the 9089 form differentiate between the E-2 principal and the E-2 spouse?

4) If the alien holds an E-2 Investor Visa ... but is physically outside the U.S. on the day that the 9089 form is filed, could 'n/a' be chosen in respect of the alien's status? Surely this would this alleviate the problem if it were the case. Or could this cause problems down the line when filing the I-140/I-485 when the alien would be back in E-2 status?

5) If an audit is received because of the E-2 status of the applicant, what do you feel would be the likely line of questioning and how might be the best way to respond?

Answer by Edward Litwin:

This is an opinion. However, it is based on either a case or previous liaison minutes. The primary issue is one of alien ownership. Since many E-2 holders own their own businesses or have a share in the business, the Department of Labor is suspect about "undue influence."

The questions seem to focus on an E-2 who is looking elsewhere for employment. In such a situation, if there is an audit, documenting that the labor certification is being filed by an employer other than the E-2 employer, or that the employee of an E-2 company has no ownership or influence, would be sufficient to demonstrate no "undue influence."


In a prior ILW.COM conference re PERM a few months ago, one of the panelists said that he was not doing new non-identical PERM filings in the situation where the company had filed a labor cert under RIR or nonRIR and it was still pending. The attorney (it was either Angelo or Ron) suggested that the DOL would treat the second filing (the PERM application) as a new filing and administratively close the RIR or nonRIR filing. Is there any risk that this could happen?

Answer by Edward Litwin:

The Department of Labor has no regulatory authority to administratively close an RIR or non-RIR filing. They only have such authority where the filing is identical and it is requested that the original priority date be kept. My assumption is, however, that the Department of Labor will continue to do what was the past practice in many regions, that is, refuse to process both cases and ask the employer/attorney to withdraw one of them. If, however, as rumored, the PERM computers and the BRC computers are not talking, there is a good chance that the PERM processing centers will not know of the previous filing.

About The Author

H. Ronald Klasko, et al. are the speakers for the Solving The PERM Puzzle seminar.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.