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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.

January 26, 2009

Danger Signs in PERM Cases

Thomson West has completed delivery of the 2008-2009 edition of their Labor Certification Handbook. The book is edited by Austin T. Fragomen, Jr., Careen Shannon, and Daniel Montalvo.

The Handbook lists a series of dangers for PERM processing, which should be taken seriously by Employers and their attorneys. I would like to review these danger signs and add a few thoughts of my own:

  • Does the job exist? Many employers or members of their work staff make inadvertent statements that can have long lasting effect. A position available to US workers in a PERM application must remain open to US workers until the date of certification. After certification (approval), the position may then be considered filled by the alien. The fact that the alien is currently working temporarily in the position, for example, under a practical training work permit, does not mean that the permanent position is not open to new job applicants.
  • Failure to Consider job applicants? Employers must fully consider all job applicants. This requires them to review the resume on its face and to look beyond the written words on the resume to determine whether job applicants may be considered qualified by a combination of experience, education or training. This can only be determined, in most cases, by contacting the worker for an interview, either by phone or in person. The Employer then has the burden to explain why the worker was not qualified.
  • If qualified workers apply? The application for PERM cannot be continued if qualified workers apply for the position. The Employer must withdraw the PERM application, however, it is generally agreed that the Employer need not fill the position at the time of withdrawal but may simply void the position itself.
  • Alien ownership or control of the company? If the alien is in a position to control the selection of US workers, due to ownership or family relationship of the company, then the application may be considered to be uncertifiable due to lack of objectivity in the job interview process.
  • Are the mminimum requirements justifiable for the job opportunity? Training requirements under PERM must be minimal and only sufficient to allow a minimally trained worker to qualify for the job. PERM applications may not state the existence of a job requiring well-trained or highly trained workers. The DOL takes the position that well-trained or highly trained workers may be hired from the pool of US workers available, and that aliens may only be hired under the minimally qualified standard. If the position describes a higher standard, then the Employer must document the need by business necessity. Business and industry standards may generally not be used if they are higher than the minimum standards stated in the O*Net profile on the DOL website.
  • Does the position exist? If the position is being created, but does not yet exist, the Employer must prove that the position is real and genuine. This can be done by providing documentation regarding the plans for expansion and job creation.
  • Ability to pay the wages.? While this is normally required to support an I-140 Preference Petition filed with DHS, the DOL may also inquire into ability to pay the wages. This may occur if the Employer files for multiple applications or if the position is not normally offered full-time by similar employers. Examples would be a market research position for a small business and full-time in-house accountants.  
  • Positions for household employees?  These jobs may be offered, but not only the ability to pay the wages may be reviewed but also the job duties for the position, i.e., whether the job duties sustain a full-time position. An example would be a child tutor to care for children who are in school and rarely at home.
  • Current financial crisis in the US? Given the fact that many US workers are out of work, and many others are working shortened work schedules, it should be easier to fill job positions with US workers and not necessary to apply for alien certification. This fact should be considered before filing PERM applications.

While there are many other danger signals that may be considered, the above list covers many of the most common problems encountered in labor certification processing. The DOL has many statiscis and banks of data to review PERM applications for unusual characteristics. Employers should consider a wide range of problems and issues before filing applications under PERM.