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Bloggings on PERM Labor Certification

by Joel Stewart

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

August 26, 2008

What constitutes a legal full-time job in the U.S.?

We are reminded that the regulations require that PERM applications be presented only for full-time jobs. The definition of full-time, long elusive, depends on the jurisdiction, the profession, industry standards, and the opinion of government agencies.

According to BALCA, Gardeners in cold US climates are not considered full-time, because they do not work all year. The teaching profession is full-time, but only because the teachers are paid on a year-round basis.

The federal government has standards that govern employment in the U.S., as well as the states, and sometimes these standards are used to describe benefits and protection for employees who work 20, 25, 30, 35, 40 or more hours per week. During the years when SWA was king, they usually enforced a minimum of 35 hours for labor certification cases, due to an annotation in the old Technical Assistance Guide. Many an employer was forced to convolute the work week into the 35 hour formula, resulting in unusual work days like 5.16 hours per day for six-day cooks, not including a 30 minute meal break. While 35-40 hours is a safe figure, a job may be less than 35 hours. Some industries have rules limiting the number of hours of work, like airline pilots and other high-stress jobs. We are on the breaking edge of a fuel crisis that may redefine normal work hours per day, per week, and per month.

Another issue involved with the description of full-time work is where the work will be performed. The regulations envision that at least 50% or more of the job will be performed in the United States, however, the entire job need not be in the U.S. A job requiring travel or work outside the U.S. can be sustained, as long as the majority of time will be in the U.S.  Foreign companies may act as employers. They need only obtain a FEIN to qualify under PERM, and they can petition for employees to work in the U.S.

Much of this is uncharted territory, so employers should consult labor and employment law specialists to provide opinions on what constitutes a legal, full-time job in the U.S. For an updated BALCA decisioin, refer to BALCA upholds, Matter of Rankin Landscaping, Inc., 2007-INA-00057, 2008.