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eta. Employment And Training Administration United States Department Of Labor. Re-engineered Permanent Labor Certification Program (PERM). Effective: March 28, 2005. History and Background.
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eta Employment And Training Administration United States Department Of Labor Re-engineered Permanent Labor Certification Program (PERM) Effective: March 28, 2005
History and Background • A labor certification is required prior to petitioning USCIS for permanent residence (“green card”) for certain employment-based immigrant visas • DOL certifies: • not sufficient U.S. workers • no adverse effect on U.S. workers • Application certified or denied by DOL
History and Background (continued) • Previous process criticized as: • complex • time consuming • resource intensive • duplicative • New system streamlines process
History and Background (continued) • NPRM on May 6, 2002 • Approximately 200 comments • Approximately 1,100 pages of comments • Final regulation responsive to public comments • Final rule published on December 27, 2004 • Regulation effective March 28, 2005
Highlights of Re-engineered Program • Employers must conduct recruitment before filing applications • SWAs provide prevailing wage determinations, but will no longer accept or process permanent applications once the regulation is effective • Employers have the option of web-based filing • Must offer at least 100% of the prevailing wage • Employer retains supporting documentation for audit purposes for five (5) years • Business necessity included in final rule
General Instructions • Representation by agents or attorneys allowed • Filing options (ETA Form 9089): • mail-in • web-based • No facsimile (fax) applications • Pin/Password process for e-filing
General Instructions (continued) • Applications will be processed in either the Chicago or Atlanta National Processing Center – based upon work state • Incomplete applications will not be accepted or, in the case of paper applications, will be denied
Filing Date & Re-filing of Pending Cases • Date stamping of applications accepted for processing • Re-filing applications under the final rule • must meet final rule recruitment requirements • must be identical application • current application must be withdrawn • re-file is considered a withdrawal • withdrawal allowed prior to re-filing, must re-file within 210 days • re-filed applications may take longer to process than other ETA Form 9089s
Pre-filing Recruitment • Separate Professional and Nonprofessional occupation recruitment requirements • Professional occupations are listed in Appendix A to the Preamble • All occupations not listed in Appendix A to the Preamble are considered non-professional for purposes of this recruitment
Pre-filing Recruitment (continued) • Placement of job order with SWA • Two Sunday newspaper advertisements – professional journal optional in certain cases • Additional recruitment steps for professional occupations
Contents of Advertisements • Employer name • Wage rate (optional) • Description of vacancy and geographic area of employment
Job Opportunity • Business necessity available • No foreign language requirement, unless justified by business necessity • Combination occupations permitted when justified • Alternative experience requirements permitted
Job Opportunity (cont.) • Job requirements must represent employer’s actual minimum requirements • Alien’s background must satisfy actual minimum requirements • Alien’s qualifying experience cannot be gained with the employer, except in limited circumstances • Definition of “employer” determined by EIN
Other Requirements • Notification to laid-off U.S. workers by the employer applicant • Prohibition against alien influence and control over job opportunity
Recruitment Report • Recruitment steps undertaken • Results achieved and lawful reasons for rejection of U.S. workers, as applicable • Maintain resumes/application materials for documentation/audit purposes (5 years)
Schedule A Occupations • Physical therapists • Professional nurses • Aliens of exceptional ability in the sciences or arts • Performing artists of exceptional ability – previously special handling
Other Occupations • Labor certification requirements for sheepherders – direct to USCIS • Optional recruitment and documentation for college and university teachers – alternative recruitment • Live-in household domestic service workers – additional documentation required
Bona Fides • Employer existence • Sponsorship • Publicly available databases
Audit Letters • Based on: • review of application • selection for quality control purposes • Required documentation based upon the particulars of the application – some will be requested by the audit letter • 30-day response time for submittal of application documentation – one extension at COs discretion • CO may ask for additional information • Failure to comply, application denied and future applications audited • Application may be denied after review of supplied documents
Supervised Recruitment Directed by Certifying Officer • Advertising requirements for the job opportunity • Detailed written recruitment report • 30-day response time
Labor Certification Determinations by Certifying Officer • Application either certified or denied • Final notification to employers in writing • Possibility of supervised recruitment up to two years • Employer request for reconsideration or review within 30 days
BALCA Review of Denials • Request by employer to denying CO by certified mail • Assembly of appeal file by certifying officer • sent to BALCA • copy to employer
Consideration by and Decisions of BALCA • Briefs and Statements of Position within 30 days • Notification of decision • Hearings – notification and procedure • No remands • Review on the record
Substitutions and Invalidations of Labor Certifications • After issuance, subject to invalidation for fraud or willful misrepresentation • Substitution of alien beneficiaries • Issuance of duplicate certifications
Fraud or Willful Misrepresentation in Certification Applications • If possible fraud discovered before certification, referred to USCIS, DOL Inspector General, etc. • If subject to judicial process, application processing halted • If fraud found, application invalidated and processing terminated • 90-day notification period
Revocation of Approved Labor Certifications • Basis - Certifying Officer finds certification was not justified • Employer receives notice of intent to revoke
Prevailing Wage Determination Process for Permanent Labor Certification Purposes
Process for Obtaining a Prevailing Wage Determination • Request prevailing wage determination from SWA serving area of intended employment on their form • Validity period 90 days to 1 year from determination date • Employers must file their applications or begin recruitment within the validity period specified by the SWA
Process for Obtaining a Prevailing Wage (continued) • SWA determination sources: • CBA when appropriate • employer provided survey • must meet all requirements listed in the regulations • median acceptable if no mean • DBA and SCA may be utilized by employers – no longer mandatory • OES • Guidance forthcoming on 4 wage levels • The SWA must consider one supplemental submission concerning the wage determination
Prevailing Wage Review • Request from employer within 30 days of the determination by the SWA • CO reviews determination based on the record • Employer may request BALCA review of CO determination within 30 days of the date of the decision
Address and Contact Information • Employment and Training Administration Office of National Programs Division of Foreign Labor Certification 200 Constitution Ave., NW C-4312 Washington, DC 20210 • DFLC website http://www.ows.doleta.gov/foreign/ or http://www.workforcesecurity.doleta.gov/foreign/ • Send questions to PERM.DFLC@dol.gov
