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Bloggings on PERM Labor Certification

by Joel Stewart

October 06, 2008

Update on PERM

Since PERM was introduced in March 2005, it has gone through basic training and emerged with some significant changes. These include problems with zero tolerance in electronic filing, scope of review for reconsideration and appeal, rigorous application of audits for inconsistent SVP and O*Net Job Zone Levels, prohibition on client payment of attorney fees, proposals to centralize prevailing wage determinations in federal ETA offices, and changes to the PERM form itself. Zero Tolerance The agency kicked off the new PERM Program, which reviews cases electronically, with little intervention from human beings. The Agency seemed preoccupied only with exactness on the PERM Form ETA 9089 and denied applications for miniscule, typographical errors. In Health America, BALCA 2006-PER-1, an application where the date of the second Sunday ad was entered incorrectly, the Board decided that since there had been no warning to users during the electronic filing process, was improperly applied. Since then, DOL has introduced warnings and on-line controls to prevent such errors, and zero tolerance has become the law of the land.

Scope of Review

In the same decision, Health America, the Board decided that the scope of review is limited to the PERM application and the record file, defined as being the complete file at the time the PERM application is filed with DOL. The record file includes those documents specifically enumerated and required by law (prevailing wage request and determination, notice of filing, advertisements and recruitment, resumes and employerís report on results of recruitment), and additional documents not specifically enumerated, like business necessity, minimum requirements, existence of Employer, and others. Under pre-PERM, employers could add additional documents to the file, anytime after filing an application, and in response to a Notice of Findings. Under PERM, the record file is closed at the time the application is filed. Rigorous Auditing Based on SVP & O*Net Inconsistencies. Project PERM Audits 2007 has now brought the issue of SVP, long a sleeper, to the fore. The SVP has become a controversial issue, due to the inaccuracy in the O*Net classifications. Both Job Zone Levels and SVP are in dispute. SVP (Specific Vocational Preparation) is defined in terms of ranges which are permissible minimum requirements in labor certification applications. A Bachelor's Degree is stipulated by long-standing DOL policy to count as two years (not four, because only the last two years of the four-year program are counted as specific), a Master's Degree as four years, and a Ph.D. counts as seven years. Experience, training and other forms of education (Associate Degrees and appropriate post-secondary education) are measured in real-time. For more information look at the "Revised Handbook for Analyzing Jobs." Job Zone Levels purport to represent five zones which correspond to different SVP levels. Job Zone Levels have undergone unexplained and sudden changes, resulting generally in a radical downward determination of permissible skill levels used to determine "normal requirements" in the U.S. Some jobs in the DOT were downgraded from previous levels, so that jobs which were categorized with SVP 8 are now relegated to SVP 7. In actual fact, the entire SVP concept has been changed, where previously levels were described as more than up to and including, they now are described as from up to and less than." As a result, Inaccuracies now abound in the O*Net. To give a cogent example the "Director of Human Resources" (DOT 166.117-018 aka "Personnel Manager") previously would have permitted a Masterís Degree or a Bachelorís plus Five years of progressive experience, with an SVP of 8. However, the O*Net now lists the maximum SVP as 7 (no more than four years of education, training or experience). As a result, the Job Zone Level and SVP permit a Master's Degree, with no experience, since a Masterís Degree is equal to four years SVP, but the job no longer permits a Bachelor's plus five which requires five years SVP, permitted only by SVP 8 and Job Zone Level 5.

Substitution of Aliens Prohibited

Substitution of Aliens, formerly permitted, is now specifically prohibited. Substitution took place when the I-140 Petition is filed. The Employer appended information to the I-140 to provide information about the new alien who was qualified at the time the labor certification was first submitted to DOL. As an added bonus, the new alien benefited from the priority date of the original alien. Aliens who were not protected by Sec. 245-i cannot gain protection by being substituted; however, they could gain the benefit of the earlier priority date of an approved labor certification. Although substitution of aliens is no longer permitted, aliens can still substitute employers. Prohibition of Attorney Fees As most readers know, the DOL Substitution Rule issued on May 16, 2007, prohibits attorney fees in certain situations. DOL has ruled that attorneys may not be paid to represent the employer and the alien, unless the employer pays the attorney fees and all costs. Alternatively, the attorney may represent the alien and be paid by the alien, but in that case the attorney may not represent the employer. The rule is directed to those situations where attorneys provide dual representation, itself a controversial ethical topic, for the employer and the alien. The rule itself presents many legal issues and places all the parties in jeopardy for possible violation of ethics and law. To determine appropriate legal fees for providing assistance to an Employer to prepare and file a PERM application, the OMB states that it should take two hours.

Changes to the PERM Form 9089

In August of 2007, DOL proposed a new form. The public comment period closed on April 30, 2008, and the form is set to take effect in January 2009. Important changes on the new Form 9089 include the following: (1) Name of Employer now has a separate box for the legal business name and the trade name. (2) Total number of employees will now be required. (3) Multiple worksites (up to five) may now be entered on the form. (4) Full-time employment is listed as 35-40 hours per week. (5) There is a special box for the Kellogg Magic language. (5) Brief Explanation for Restrictive Requirements will be possible. (6) Only relevant employment, and not all employment during the last three years, is required. (7) Changes of signature will be possible.