PERM Labor Certifications
PERM (Program Electronic Review Management) is an electronic process for filing labor certification applications for permanent employment-based immigration. PERM replaces paper-based labor certification filings consisting of Reduction in Recruitment (RIR) requests and Traditional Labor Certifications, filed with the state departments of labor or state workforce authorities (SWAs). Under the PERM system, the labor certification filings will almost entirely be filed electronically and directly with the U.S. Department of Labor (DOL), operating out of 2 centers in Atlanta and Chicago.
Fueled by SWA backlogs, PERM is designed to streamline the labor certification process and reduce processing times. PERM uses computer-based "decision logic" to analyze electronically submitted applications. The old system relied on human examiners to review each paper filing. Under PERM, employers will still be expected to gather, and furthermore, maintain recruitment documents supporting the labor certification application. However, rather than reviewing the recruitment documents with each application, DOL under PERM simply retains the right to audit employers to demand them.
PERM regulations took effect on March 28, 2005.
Required company registration: Each employer must directly register with DOL online at: http://www.plc.doleta.gov/ using its actual legal name. No agent or attorney may do this on the employer's behalf. After registration, DOL will send the employer registration information by email including UserID, password, and PIN. After registration, the DOL may send an email, especially to smaller and newer companies, requesting incorporation-related documents. This is to verify the existence of the company. It is advised that the registered contact person be an individual with hiring authority.
Creating attorney subaccounts: Once registered, the employer can create a subaccount for its attorney. Only after a subaccount is created can an attorney modify and finalize the PERM filing on Form ETA 9089. For instructions on creating subaccounts, review the Online Help instructions starting on page 21 at: http://www.plc.doleta.gov/onlinehelp.pdf.
Prevailing wage: PERM requires that employers obtain prevailing wage determinations from the appropriate SWA in advance of the filing. Moreover, an employer must pay the sponsored employee at least 100% (rather than just at least 95% under the old rules) of the prevailing wage for the position. Finally, the labor certification application must be filed within the validity period of the prevailing wage determination. Miller Mayer will work with the employer in obtaining the prevailing wage from the appropriate SWA.
Job order requirement: Another new requirement under PERM is placing a 30-day job order with the SWA. Each state has different procedures for placing job orders. Some states are still in the process of finalizing its procedures. Miller Mayer will work with the employer in placing the job order with the appropriate SWA.
Required recruitment: The RIR rules simply required one print ad and a "pattern of recruitment" in other recruitment forms.
PERM is more specific. For all applications, except those filed under "Special Handling" rules (discussed below), the following are required:
2 Sunday ads in newspapers covering the area of intended employment
In addition, for a professional occupation, the employer must undertake at least three additional means of recruitment out of a list of 10 acceptable forms of recruitment, including:
- job fairs
- on-campus recruiting
- employer website
- trade/professional organization
- job search website other than employer's
- private recruitment firm
- employee referral program
- campus placement office
- local/ethnic paper
- radio or TV ads
Conduct of recruitment:
Period of recruitment – All of the required recruitment must be completed within 180 days before the filing date. However, only one form of additional recruitment can take place within 30 days of the filing date.
Content of the ads – the ad text must conform to the PERM rules. Miller Mayer will work with the employer in drafting the final ad text before placement.
Disqualifying candidates - The employer is not allowed to disqualify a U.S. worker who can reasonably be trained to perform the duties of the position.
Layoffs - If the employer has had any layoffs in the sponsored employee's occupation or a related occupation within six months before filing, the employer must document that it has contacted and considered all laid off employees.
Document retention: The employer must retain recruitment materials and results, including resumés of applicants sorted by reasons not qualified, for five years. Miller Mayer will prepare audit documentation for each PERM filing. We do not generally request resumés from employers, so the employer is advised to retain them, properly sorted, on file with the audit documentation.
Special handling: College and university teachers only need to show that they were selected pursuant to a competitive recruitment and selection process within 18 months of the filing date. This process only needs to include one ad placed in a national professional journal. In addition, the employer must prepare a statement outlining the recruitment procedures and include a final report of the selection committee.
Audits: DOL has declined to publish audit criteria. Under PERM, the DOL retains the right to audit based on triggering factors derived from its decision logic matrix. DOL may also conduct random audits. Below are some factors that may trigger audits:
- employers with 10 or fewer employees
- employers with any family relationship between its employees and the sponsored foreign national
- an employer accepts an alternate combination of education and experience
- an employer accepts experience in an alternate occupation
- job requirements exceed those "normal" to the occupation as DOL determines
- job includes a combination of occupations
DOL Follow up: After the PERM application is filed, DOL will email the employer contact person to verify the job opening as a part of its anti-fraud effort. Failure to reply immediately will result in a phone call to the employer. Failure to immediately return the phone call will result in a denial of the application. The 4 questions DOL will ask are:
1. Are you aware that an Application for Permanent Employment certification was filed on your behalf?
2. Are you, or do you work for the employer referenced in the Application?
3. Do you have an opening for [name of position] in [city and state]?
4. Are you sponsoring [employee's name] for this position?
The appropriate response to each of these questions is "yes."
It is advised that the employer contact person regularly check his/her email and voicemail after a PERM filing to prompt immediate response. It is also advised that the employer take steps to ensure that the DOL email is not blocked by its SPAM-blocker. If the contact person is away for any period of time, other employer staff should check email and voicemail during the absence.
Open issues and questions:
Should we refile under PERM for a pending RIR?
PERM permits employers to "refile" pending cases under the new PERM regulations. Refiling will preserve the original filing date and will be processed faster than many cases in the Backlog Elimination Centers. However, the DOL requires that the two applications be "identical." If the DOL determines that the 2 applications are not identical, the pending RIR will be withdrawn without preserving the original filing date. The DOL expects to clarify the definition of "identical" later in 2005.
Where an employee is relying on the original filing date to establish "7th year H" eligibility, it may be inadvisable to refile. In addition, if the RIR was filed for a job requiring only a bachelor's degree, the EB-3 immigrant visa category backlog is another reason to avoid refiling. Currently, individuals in the EB-3 category (bachelor's degree holders, skilled and unskilled workers) may not file immediately for their adjustments or immigrant visa applications (the final steps toward permanent residence), even after their labor certifications are approved. They must wait until visa numbers become available for their original filing date, also known as the "priority date." Those with later priority dates are cut off from filing for permanent residence.
Can we file PERM and also keep the pending RIR?
The DOL has declined on several occasions to answer whether this is permissible. PERM regulations do not prohibit having two filings pending simultaneously. However, the DOL's main priority is efficiency. Accordingly, DOL has discouraged dual pending filings.
Where is the pending RIR?
The pending RIR cases received before March 28, 2005 have mostly been shipped out in phases to two Backlog Elimination Centers (previously called Backlog Reduction Centers) in Philadelphia and Dallas. As of June 2005, DOL had logged in about 190,000 cases into their database, with about 150,000 cases to go.
Once a case is logged in and assigned to an examiner, a "45-day letter" will issue to both employers and attorneys of record. The letter will ask whether the employer still wishes to continue the case, and will ask clarification on issues as needed, giving 45 days to respond.
As soon as we receive a 45-day letter, we will contact both the employer and the foreign national.
How do we obtain proof that a pending RIR has been pending for 365 days for 7th year H eligibility?
The DOL has issued specific guidance on how to request proof of a case pending for 365 days. As needed, we will request such proof for 7th year H filings.
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