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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.

June 29, 2009

PERM: Who Can File for What?

The PERM process varies according to the type of job for which the Employer is seeking certification.

1. There is a basic process described under 20 CFR 656.17 which is used for most PERM applications. Basic processes are filed with the DOL electronically or by mail.

2. College or university professors apply under 20 CFR  656.17 or 656.18. The latter is a special process which relies on the process of selection by the entity of higher education. 20 CFR 656.18 is the only type of recruitment in  which the Employer may seek the best qualified candidate, since the regular process under 20 CFR 656.17 does not allow the best candidate to be selected, but only the most minimally qualified. In addition to filing Form 9089, the application must be accompanied by documentation of the competitive recruitment process conducted by the University within the last 18 months. Because of the special documentation required, these applications are filed by mail with the DOL.

3. Occupations listed on Schedule A are precertified by the DOL. These includes Schedule A Group I (Nurses and Physical Therapists) and Schedule A Group II Aliens of exceptional ability in the Sciences or Arts and Aliens of Exceptional Ability in the Performing Arts. These applications (Form 9089) are filed together with an I-140 petition directly with the Department of Homeland Security by mail and not with DOL using the DOL's electronic filing process.

Note: Physical Therapists and Nurses may only file under 20 CFR 656.15 and not under the regular process 20 CFR 656.17, i.e., they may not use the regular process described under CFR 20 656.17.

4. If you happen to be filing for a sheepherder, you may file the necessary paperwork by mail, including documentation of employment as a sheepherder for at least 33 of the immediately preceding 36 months.

5. The role played by the National Office under PERM is now limited to correspondence and questions. Previous to PERM, the national office could receive applications for certification if they involved any special problems or handling requirements. Obviously the electronic filing procedures under PERM does not permit employers to send the applications by mail to the National Office.

6. Who may file a PERM application? An Employer is defined as "A person, association, firm, or a corporation that currently has a location within the United States to which U.S. workers may be referred for employment and that proposes to employ a full-time employee at a place within the United States, or the authorized representative of such a person, association, firm or corporation. An employer must possess a valid Federal Employer Identification Number (FEIN). An "authorized representative" means an employee of the employer whose position or legal status authorizes the employee to act for the employer in labor certification matters. A labor certification can not be granted for an application for permanent employment certification filed on behalf of an independent contractor.

7. Notwithstanding this definition of an authorized agent to represent the Employe, i.e., to sign an application for an employer, this does not include "Agents" who are designated in writing to act on behalf of an alien or employer in connection with an application for labor certification. In these cases the "authorized representative" may use the services of an agent. The authorized representative is the employer, and the agent just receives correspondence from DOL regarding the application.

8. Who may not file a PERM application?  Persons who are temporarily in the United States, including but not limited to, foreign diplomats, intra-company transferees, students, and exchange visitors, visitors for business or pleasure, and representatives of foreign information mediate can not be employers for the purpose of obtaining a labor certification for permanent employment.