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Bloggings: May 2, 2007

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

April 26, 2007

ILW.COM PERM Workshops

Just a quick note on the PERM Workshops. ILW.COM is scheduling them all around the country. The Workshops are a great opportunity to learn more about PERM and get together with persons who are highly motivated and interested to share their questions and ideas. The Workshops take place during one very intense day, broken up into four sessions. The sessions cover everything from soup to nuts -- how to prepare a PERM application, deal with the O*Net and the 9089 form, calculate and request prevailing wage, avoid restrictive requirements, conduct recruitment, and respond to audits, final determinations, reconsiderations, and appeals. The Workshops are not lectures but interactive sessions in the sense that participants can ask questions and follow along with special materials and handouts. I personally look forward to the Workshops to make friends with persons from around the country. If you are wondering whether you need to attend a PERM Workshop, consider the 10 questions below. If you can answer them correctly, you do not need to come to the workshop. If not, you better join us ASAP. Of course, even those who correctly answer the questions can come and share their knowledge with us!

(1) What box is used for the Magic Language? (If you do not know what the Magic Language is, you should proceed no further and sign up for a Workship right away!).

(2) What is the difference between a job and an occupation?

(3) When does the PERM process use the old SVP standard and when does it use the new O*Net standard for experience, educaion, and training?

(4) How many days do you have to respond to an Audit or Denial?

(5) What kinds of errors can be corrected on a PERM form after filing?

(6) What is the business necessity requirement for foreign language under PERM?

(7) Can unpaid experience be used to qualify for a job?

(8) Which documents must be retained for five years and who must retain them?

(9) How may special requirements be documented on the form?

(10) Which details must be placed in the ads?


(1) The Magic Language must go in Item 14. It must state, "Any suitable combination of education, training, or experience is acceptable."

(2) An occupation is one defined by an SOC code. A job is a specific job offer under an SOC occupation code. Jobs may vary within the same code (French Chef, Traditional Cuisine vs. French Chef, Nouvelle Cuisine -- Different Jobs, but Same Occupation per SOC) -- (French Chef vs. Garde Manger -- Different Occupations because SOC codes are different).

(3) The SVP is used for pre-PERM cases, and the O*Net is used for PERM, to determine normal requirements. However, the SVP continues to be used for PERM in parallel to determine minimums and maximums.

(4) Under PERM, you must respond to DOL within 30 days. Response has to reach ETA Office on 30th Day. Under old system, 35 days to respond to an NOF or Denial, but response can be sent by certified mail on 35th day).

(5) After filing electronically, it may be possible to make some corrections during an audit. If filed by mail, it may be possible to make correction while the application is pending. After a denial, it may be possible to make some corrections as part of Motion to Reconsider. Generally speaking, there is no longer any such thing as "Harmless Error." This means that corrections should be possible if DOL was at fault (like a glitch or problem with electronic entry), but not if the Employer was at fault.

(6) Business Necessity for Foreign Language has changed! It is not the same as pre-PERM. The new business necessity standard for Foreign Language states that it may based on (a) Nature of the occupation, e.g., translator; (b) Need to communicate with a large majority of the employer's customers, contractors, or employees who cannot communicate effectively in English (by furnishing the number and proportion of 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) 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.

(7) Unpaid experience may be represented by training, instead of experience.

(8) The regulation states, "Copies of applications for permanent employment certification filed with the Department of Labor and all supporting documentation must be retained by the employer for 5 years from the date of filing the Application for Permanent Employment Certification." The question here is how to interpret the words "supporting documentation." It appears that it is not necessary to keep resumes of U.S. Workers after a Final Determination is made.

(9) Special requirements should be placed in Item H-14, however, sometimes they may be embedded in the job duties in Item H-11. Conversely, they must be clearly and prominently shown in Item K-a-9, K-b-9, or K-c-9 to prove that the alien is qualified.

(10) The regulations only require the ads to have the name of the employer, instructions to send resumes to the employer, description of the vacancy specific enough to apprise US workers of the job opportunity, and the geographic area of employment.

For more information about the workshops or to sign up click here.