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PERM Conundrums Continue

As we continue to study and try to fathom the newly published PERM rule, we continue to run into more and more conundrums. A case in point is the new requirement at the new 20 CFR 656.10(d)(1)(ii) that notice of the job opportunity for which labor certification is sought must be published "in any and all in-house media, whether electronic or printed" the proof of which is "by providing copies of all the in-house media, whether electronic or print". The key issue here is the word "media". As all readers of Immigration Daily (itself an electronic newsletter) probably know, the word "media" is in the process of a fundamental transformation, and even the most knowledgeable commentators on media publishing (i.e. experts on newspapers, music etc) have only an approximate and in-exact understanding of what "media" means today. Take for example an intranet database of job opportunities maintained by many of the larger companies - posting the job opportunity here would be required under the new section referenced above to comply with the requirement that the posting be in a location "in accordance with the normal procedures used for the recruitment of similar positions in the employer's organization". The problem is - is a database "media". If so, how does one provide a copy of a database to prove the posting? While it might appear that the easy answer is to give a print-out of the listing, printing a database listing is not the same as the regulatory requirement, for printing does not capture many of the data elements of a database (for example how would the employer document the duration of the posting?). DOL will assuredly need to provide guidance on these other data elements not captured in a print-out, making the new requirments more cumbersome than they already are.

Another example of the DOL's misuse of a term of art is the word "edition" at the new 20 CFR 656.17(e)(1)(i)(B)(2) and the new 20 CFR 656.17(e)(2)(ii)(B). The issue, which we will not discuss at length today, is that "edition" can mean not one, but many different things in general publishing usage - and DOL may have opened up a can of worms here without even intending to.

To prepare for PERM, we recommend the following:

Erratum: Immigration Daily will continue to remain on the cutting-edge of PERM matters. However, the cutting-edge is sometimes the bleeding-edge, in other words, we make mistakes from time to time. If we do, you can count on us to timely correct our mistake. In our Comment in our December 29, 2004 issue, we erred in saying that revocations of certifications under the new PERM rule are not appealable to BALCA. In fact, they are.

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