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PERM Labor Certification - PERM Labor Certification
PERM Labor Certification - Labor certification for the Permanent Employment of Aliens in the United States;
Implementation of New System (PERM)
PERM Labor Certification - HIGHLIGHTS:
1. Effective date: March 28, 2005
2. The prevailing wage standard is the same for both PERM and the recent H-
1B amendments (100% of prevailing wage must be paid, but four wage levels
3. The goal for decisions on PERM electronically filed applications is 45 – 60
4. Conversion means withdrawal and refiling, and only for “identical job
5. No fees (future rulemaking possible)
6. Anti-fraud provisions include verification that employer is a bona fide
business entity with employees on its payroll
7. No money penalties or debarment for fraud or willful misrepresentation of a
material fact (future rulemaking possible)
PERM Labor Certification - Prevailing Wages
Overview – Generally, the changes and clarifications related to the employer’s obligation
to pay prevailing wage and the manner for challenging a prevailing wage determination
apply equally to H-1Bs and to Labor Certifications.
PERM Labor Certification - Payment of 100% of the Prevailing Wage
The final rule clarifies that the changes to prevailing wages in the Consolidated
Appropriations Act of 2005, signed on December 8, 2004, related to the filing of H-1B
applications applies equally to the labor certification program. The prevailing wage
required to be paid is 100% of the prevailing wage; the 5% variance is no longer allowed.
PERM Labor Certification - Use of Four Skill Levels
Governmental surveys such as the OES shall provide for 4 levels of wages commensurate
with experience, education, and the level of supervision. If only two levels are currently
provided, two new levels can be created by dividing by 3 the difference between the two
levels offered, adding the quotient obtained to the first level, and subtracting that quotient
from the second level. Guidance to the State Workforce Agencies on how to apply the
new four levels will be forthcoming
Note: Example – The OES salary for an Electrical Engineer in Ventura County,
California Software Engineer:
OES I = $53, 747
OES II = $86,174
$86,174 - $53,747 = $32,427
1/3 of $32,427 = $10,809 ( “ Quotient”)
New OES II = $53,747 + $10,809 = $64,556
New OES III = $86, 174 - $10,809 = $ 75,365
PERM Labor Certification - Use of the Davis Bacon Act and the McNamara-O’Hara Service Contract Act
Use of the DBA and SCA is no longer mandated but may be used by the employer. Note
that if the employer chooses to rely on a DBA or SCA wage, that wage will be considered
prima facie evidence of the prevailing wage, and the SWA will not question its use as
long as it is applied appropriately, such as selecting the correct occupational classification
and skill level.
PERM Labor Certification - Use of Alternate Surveys
Employers may continue to use private surveys as alternative sources for determining the
prevailing wage as long as the survey complies with 656.40(g)(1)-(5) and the provisions
set forth in section J of GAL 2-98 which set forth such factors as adequacy of survey
methodology, geographic scope, and age of the survey. SWAs are encouraged to
maintain records of approved surveys and to keep review of previously accepted surveys
to a minimum.
PERM Labor Certification - Validates the Use of Surveys which Contain Just One Overall Skill Level
Surveys that provide one overall skill level, such as the Bureau of Labor Statistics (BLS),
continue to be acceptable as long as the survey does not provide usable wage data for
varying skill levels for the occupation. Example: A private survey provides one overall
median or weighted average for an occupation and also has various intermediate skill
levels but the sample size for those intermediate levels is inadequate. One can use the
overall figure because the other skill levels have unusable data.
PERM Labor Certification - Provides for the Use of Surveys that Publish the Median Wage
Whereas currently surveys must provide the weighted average, the final rule clarifies that
a survey will be acceptable if contains the median wage and not the arithmetic mean. If a
survey provides both the median and the mean, then one must use the mean. If the
survey doesn’t provide mean wage data, and only provides the median, the median figure
may be relied on.
PERM Labor Certification - Geographic Scope of Survey and Definition of “Similarly Employed”
CMSA surveys or statewide data may be acceptable if the employer can demonstrate it
was not possible to obtain a representative sample of similarly employed workers within
the MSA or PMSA based upon standard survey practices. Also, a CMSA survey will be
accepted if the employer can demonstrate that all points in the survey are within normal
commuting distance of the employer. Lastly, if the OES survey uses Level 2
(contiguous), Level 3 (statewide), or 4 (nationwide) data, a CMSA survey is acceptable.
PERM Labor Certification - Inclusion of Discretionary Bonuses, Commissions, Cost-of-Living Allowances
These items are included in the OES wage data. Under current policy, they can be
included in determining the wage offered by the employer as long as such payments are
guaranteed by the employer, and are thus not discretionary. However, the final rule does
not change the attestation provisions under the General Instruction at section 656.10 (c)
(2) that if the wages are based on commissions, bonuses or other incentives, an employer
must guarantee a prevailing wage paid on a weekly, bi-weekly, or monthly basis that
equals or exceeds the prevailing wage. Note, there still remains the conflict that the OES
survey measures the average rate of wages paid in the survey year’s sample but the
employer must guesstimate what are typically variable and discretionary pay factors on a
guaranteed basis and must pay them on a periodic versus annual basis.
PERM Labor Certification - Timing of Payment of the Prevailing Wage
The final rule continues to reaffirm the current regulation that the prevailing wage must
be paid either from the time permanent residency is granted or from the time the alien is
admitted to take up the certified employment. Note that when “an alien is admitted to
take up the certified employment” also refers to admission as a permanent resident.
PERM Labor Certification - Offered Wage Not Required in Recruitment Except for Internal Posting
Contrary to the proposed regulations, the final regulations do not require that the offered
wage be included in the recruitment efforts; however, it does have to be included in the
internal posting but a range is permitted as long as the bottom is 100% of the prevailing
wage, and the range must include the “offered wage,” i.e. the wage offered to the alien at
the time the labor certification is filed.
PERM Labor Certification - Schedule A Occupations Require a PWD and Posting
A PWD is required for Schedule A occupations and an internal posting listing the
prevailing wage is required.
PERM Labor Certification - Prevailing Wage Form
In lieu of developing a new form that would be submitted with the labor certification
application form as the proposed rule indicated, the final rule requires that one seek a
PWD from the State Workforce Agency and permits the continued use of separate forms
by each state. Presumably before the effective date of the regulations the DOL will
ensure that there are SWAs that will provide for wage determinations for all applicants in
all regions. Pertinent data such as wage, occupational code, level of skill, job title,
tracking number, and date and validity of determination from the state’s prevailing wage
determination form is to be inserted in ETA Form 9089, Application for Permanent
Employment Certification. The state workforce form must be retained by the employer
and submitted in the event of an audit.
PERM Labor Certification - Prevailing Wage Determination Response Time
The SWAs are expected to respond expeditiously to request for wage determinations but
no specific timeframes were imposed.
PERM Labor Certification - Validity of Prevailing Wage Determinations
The validity will be no less than 90 days and no more than one year from the date of the
PERM Labor Certification - Validity Period Related to Commencement of Recruitment and Filing
Employers must file their applications or commence the recruitment within the validity
period specified by the SWA.
PERM Labor Certification - Review of Prevailing Wage Determination
If the employer disagrees with the PWD, it may file supplemental information, or file a
new PWD request, or appeal under section 656.41.
PERM Labor Certification - Filing Supplemental Information
Employers may only submit supplemental information one time. An employer may
choose to file an alternate survey with the PWD but if it submits it after an adverse
determination, the submission of the alternate survey does not count as the one time
submission of supplemental information under section 656.40(h). Supplemental
information may be supplied to the SWA related to the choice of skill level, or erroneous
selection of occupational category, or issues related to the rejection of the employerprovided
PERM Labor Certification - File a New PWD
Filing a new PWD may be done at any time. The filing of a second alternative survey
will be considered as a new request and a new review period will be initiated.
PERM Labor Certification - Appeal of a PWD under Section 656.41
Rather than create a new entity called the Prevailing Wage Panel (PWP) to adjudicate
complaints arising from PWD under the proposed rule, the final rule provides that
Certifying Officers from one of the two new processing centers will review complaints.
Since both Center Directors report to the Chief, Division of Foreign Labor Certification,
who now has line authority over the centers, it will be easier for the national office to
review these complaints and help achieve some uniformity in decision-making.
PERM Labor Certification - Time Period for Requesting Review to the CO
A review of a PWD must be made within 30 days of the date of the determination. The
CO does not have a time frame for adjudicating the request. The CO may affirm the
decision; modify the decision; or remand the matter to the SWA for further action.
PERM Labor Certification - Time Period for Requesting Review of CO Decision to BALCA
An appeal to BALCA of the CO decision must be made within 30 days of the
determination of the CO. Besides the supplemental information provided to the SWA,
there will be no further opportunity to augment the record.
PERM Labor Certification - Prefiling Recruitment Steps
PERM Labor Certification - Posted Notice
The employer must post notice of the job opportunity for at least ten consecutive business
days. The notice period must be between 180 and 30 days before filing. The notice must
contain the salary, but may contain a wage range, so long as the lower level of the range
meets or exceeds the prevailing wage. The comments clarify that the primary purpose of
the posted notice is to give employees an opportunity to comment on the application and
that the posted notice is not another way to recruit US workers. As required by
IMMACT 90, the notice must say that any person may provide documentary evidence
bearing on the application to the CO. This is similar to the current regulation.
PERM Labor Certification - Use of Other In-House Media
In addition to printed posted notice, the employer must use any and all in-house media,
whether electronic or printed, in accordance with normal procedures used for recruitment
for similar positions in the organization. This appears to allow employers to avoid listing
executive-level positions in in-house media if it is not normal practice to do so. The new
ETA 9089 form, which replaces Form ETA 750 for most types of cases, does not
specifically require the employer to attest that he or she has advertised the job through inhouse
media. Duration of the in-house media notification, per the comment, may be as
long as other comparable positions are posted.
PERM Labor Certification - Job Order
The employer must place a job order with the SWA for a period of 30 days. Form ETA
9089 requires the employer to list the start and end date of the job order. These dates
serve as documentation of the job order.
PERM Labor Certification - Advertisements
The employer must place two advertisements on two different Sundays in the newspaper
of general circulation in the area of intended employment. Both ads must be placed more
than 30, but not more than 180 days before filing. The ads may be placed on consecutive
Sundays. If the job is located in a rural area with no Sunday edition, the employer may
use the edition with the widest circulation. However, the use of a suburban newspaper on
a day other than Sunday is not allowed. Placement of the ad under an inappropriate
heading or keyword would be considered a failure to make good-faith efforts to recruit
U.S. workers. The ad must list the name of the employer, the geographic area of
employment (only if the job site is unclear, e.g., if applicants respond to a location other
than the job site or if the employer has multiple job sites), and a description of the
vacancy specific enough to apprise US workers of the job opportunity. The employer
may include minimum education and experience requirements or specific job duties in
the ad as long as those requirements also appear on Form 9089. The ad must direct
applicants to send resumes or report to the employer, as appropriate. The employer’s
physical address is not required. A central office or post office box may be designated
for receipt of resumes. The ad need not include the salary or a detailed listing of the job
description and requirements. However, if the ad does include the salary, the salary
stated must meet or exceed the prevailing wage. Documentation of the ad can be
supplied by a copy of the newspaper page or proof of publication supplied by the
newspaper. Form ETA 9089 requires the employer to list the name of the newspaper and
date of publication for each ad. If the job requires experience and an advanced degree,
the employer may use a professional journal in lieu of one of the Sunday ads. The
proposed regulations had required use of a professional journal for such jobs, but DOL
made this requirement optional in light of comments submitted.
PERM Labor Certification - Three Additional Recruitment Steps for Professional Jobs
The PERM regulation retains the requirement in the proposed regulations that
applications for professional jobs must have additional recruitment. The list of permitted
additional recruitment steps in the final PERM regulation include: 1) job fairs; (2)
employer’s web site; (3) job search web site other than employer’s; (4) on-campus
recruiting; (5) trade or professional organizations; or (6) private employment firms. (7)
an employee referral program, if it includes identifiable incentives; (8) a notice of the job
opening at a campus placement office, if the job requires a degree but no experience; (9)
local and ethnic newspapers, to the extent they are appropriate for the job opportunity;
and (10) radio and television advertisements. Further, a web page generated in
conjunction with a print ad now counts as a website other than the employer’s. The
additional recruitment steps must take place no more than 180 days before filing. The
employer is not required to take different steps each month. Only one of the additional
recruitment steps may take place within 30 days of filing. Form ETA 9089 requires the
employers to specify the dates of each additional recruitment step. The final rule
specifies how each type of additional recruitment activity can be documented.
Alternative recruitment steps only require employers to advertise for the occupation
involved in the application rather than for the job opportunity as is required for the
PERM Labor Certification - Distinguishing between Professional and Non-Professional Jobs
A professional job is a job for which the attainment of a bachelor's or higher degree is a
usual education requirement. DOL published a list of professional occupations in
Appendix A to the PERM rule. If the occupation is listed on Appendix A, the employer
must follow the recruitment regimen for professional occupations. However, the
employer may also use the additional recruitment steps for other occupations. It may be a
good idea to do so to bolster a claim that a non-listed occupation is also professional in
PERM Labor Certification - Recruitment Report
PERM Labor Certification - Contents of Recruitment Report
The employer must prepare a recruitment report that describes the recruitment steps taken
and the results. The recruitment report must include the number of hires and the number
of US workers rejected, categorized by the lawful job-related reasons for rejection. The
CO may, after reviewing the employer’s recruitment report, request copies of the US
workers’ resumes, sorted by the reasons for rejection. The employer must sign the
recruitment report. In response to numerous comments from employers who receive a
large volume of unsolicited resumes, the final rule does not require the employer to
identify the individual U.S. workers who applied for the job opportunity.
PERM Labor Certification - Failure to Meet the Minimum Requirements
An applicant's failure to meet the employer's stated minimum requirements is a lawful
reason for rejection; however, if a worker lacks a skill that may be acquired during a
reasonable period of on-the-job training, the lack of that skill is not a lawful basis for
rejecting an otherwise qualified worker. This final rule does not specify what constitutes
a reasonable period because the training period may vary by occupation, industry, and job
PERM Labor Certification - Retention of Documentation
Supporting documents must be retained for five years from date of filing.
PERM Labor Certification - How and Where to File—Basic Process
Using a new form, Application for Permanent Employment Certification (ETA 9089),
employers can file either electronically or by mail to the appropriate ETA processing
center. Faxing will not be allowed.
PERM Labor Certification - Electronic filing
Employers will go to the ETA website located at http://www.plc.doleta.gov to complete and file the form. The site will allow frequent users to set up
a file with basic, repeat information, much like the LCA system (employer name,
address, etc.). Passwords or identifiers also might be assigned to individuals (not
businesses) for fraud prevention purposes. No G-28 is required. The employer signs the
form declaring the attorney to be the legal representative. Once the ETA is certified, the
employer must sign the form upon receipt from ETA. A copy must be maintained in the
employer’s files; the original, signed ETA must accompany the I-140 when it is filed
with CIS. A priority date will be assigned as of the date the electronic submission is
accepted for filing. Incomplete applications will not be processed, but simply denied.
PERM Labor Certification - Filing by mail
Applications can be mailed directly to the appropriate centralized processing center. The
addresses of the processing centers will be listed at
http://www.workforcesecurity.doleta.gov/foreign/ Applications filed by mail must bear
the original signature. A priority date will be assigned as of the date of receipt, provided
the form is accepted for filing.
PERM Labor Certification - Supporting documentation
Whether filed electronically or by mail, no supporting documentation will be filed with
the ETA 9089. Instead, the employer must maintain supporting documentation in the
event an audit is required or the Certifying Officer otherwise requests certain documents.
Such documentation, along with a copy of the ETA form, must be retained for five years
from the date of filing ETA 9089.
PERM Labor Certification - Prevailing wage determination as a pre-requisite to filing
Employers must file with the SWA and receive a prevailing wage determination prior to
filing the ETA 9089. Employers will use the state-designated prevailing wage request
form. Information from the prevailing wage determination will then be incorporated into
the ETA 9089. The actual prevailing wage determination form should be retained as a
supporting document, to be furnished to ETA in the event of an audit.
PERM Labor Certification - Filing Fees
There is no filing fee, as was suggested in the proposed rule.
Until Congress enacts legislation authorizing a fee, labor certification filing fees are not
PERM Labor Certification - Live-In Domestic Workers – Special Rules
The basic filing procedures will still apply to live-in domestic workers. However, the
documentation requirements are weightier. Supporting documents should not be filed
with the ETA, but should be retained in the employer’s files in the event of an audit upon
request by the Certifying Officer.
The following three documents must be maintained:
1. A statement describing the worker’s living accommodations, including whether the
residence is a house or apartment, number of rooms, number of adults and children in
household, and free board and a private room is provided.
2. Two copies of the employment contract. Contract must include hourly/weekly wage,
daily and weekly hours to be worked, worker’s freedom to leave premises during offhours
(except that overtime pay will be provided), worker will reside on employer’s
premises, total amount of money to be advanced to the worker, worker not required to
give more than two weeks’ notice, employer must give worker at least two weeks notice
of intent to terminate employment, a copy of the contract has been given to the worker,
private room and board provided, any other agreement or condition not specified on the
3. Documentation of worker’s paid experience amounting to at least one year of full-time
PERM Labor Certification - Conversion of Pending Cases
The regulation allows the withdrawing and re-filing of cases prior to the placement of a
job order by the SWA under section 656.21(f)(1) of the current regulation. An employer
who successfully withdraws and re-files a pending application will preserve the original
filing date. This will be a key objective given the retrogression of the Third Preference
anticipated on January 1, 2005. In addition, PERM applications will be processed in the
order of receipt. However, all re-filed cases must comply with all the requirements of the
new PERM final rules, including recruitment, minimum requirements, SVP, business
necessity, audit procedures and prevailing wage.
PERM Labor Certification - Continued Processing of Pending Applications Without Conversion
Pending applications which are not withdrawn after PERM’s effective date will continue
to be processed under the current rules in backlog reduction centers and regional offices.
Processing times for these applications should continue to be posted on the DOL website.
PERM Labor Certification - Withdrawal and Re-filing of Pending Applications Under PERM Limited to
Identical Job Opportunity
ONLY applications which are withdrawn prior to the placement of a job order by the
SWA may be re-filed under PERM’s new procedures within 210 days of the request for
withdrawal so long as the re-filed application is for the “identical job opportunity.”
The final rule defines this term as applications which have the SAME employer, alien,
job title, job location, job description and minimum requirements, including changes
made in response to an assessment notice from the SWA prior to PERM’s effective date.
However, there is a conflict with the final rule as published and its Supplementary
Comments, since the need for identical minimum requirements is not included in the
Comments but is contained in the final rule.
PERM Labor Certification - Analysis of Issues Arising From the Identical Job Requirement
The limits imposed by the need for identical applications present a variety of problems,
which will require DOL interpretation and resolution prior to advising a client to
withdraw and re-file. If the applications are not found to be “identical,” then the re-filed
application will be processed under the new filing date and the original application will
be withdrawn and the filing date on the withdrawn application will be lost and cannot be
used on another application. Given the need to also preserve filing dates for seventh and
subsequent H-1B extensions, as well as keeping section 245(i) on the radar screen, the
conversion process has important tactical significance.
PERM Labor Certification - Applications Which Cannot Be Successfully Re-Filed Are Treated As New
Applications Under PERM Rules
If the application cannot be successfully re-filed, it will be treated as a new application.
No preference of any type is given to pending applications that are withdrawn and not
successfully re-filed. The application will be assigned a filing date as of the date of the
request and then will be processed in-turn. This is risky business since the re-filed
application will have been prepared using new PERM recruitment based on the old data
from the prior application. If there is any question with respect to the acceptability of the
re-filed application, it may be a better strategy to restart the entire process anew.
It is clear that additional guidance and interpretation must be issued by DOL before we
can know how rigidly the “identical” concept will be applied in practice, since it is
unduly restrictive as drafted in the final rule.
PERM Labor Certification - Key Points Which Need to be Resolved by DOL and/or Considered Before
Requesting Withdrawal and Re-Filing Under PERM:
Loss of priority date if application is not found to be “identical”
Under PERM, an “employer” is defined as having the same FEIN for purposes of
determining if the employee gained the required experience on the job. If an employer
has undergone a corporate restructuring and has a new FEIN, the DOL may not find the
applications to be identical.
Similarly, the job site may have been transferred to another employer location which is
still within commuting distance or even across the street.
Employers frequently change job titles, and aspects of the job description evolve, where
the original application has been pending for a substantial amount of time, such changes
are not unlikely. Many computer jobs see turnover of software on a frequent basis. Job
functions are moved to different divisions in large companies.
“Minimum requirements” were generally not specified in RIR applications, but DOL has
allowed some flexibility if it could be found within the four corners of the original
application. If the PERM recruitment is tied to applications that do not contain minimum
requirements, it may not be worth re-filing.
Financial burden, and repetitive retesting and re-recruiting for the re-filed application
Once the application is withdrawn, it must comply with all the new PERM rules prior to
re-filing. This includes new recruitment, two Sunday ads, a new job order, and three
other steps for professional jobs detailed under the new recruitment procedures.
In its comments, DOL concludes that employers should not obtain the benefits of the new
system if they have not complied with all of its new requirements. This remark will be of
little assistance to attorneys who have to advise clients to repeat the process as well as
sustain the costs of new recruitment, administrative costs, as well as additional attorney
Will the data from the old application meet PERM’s new requirements?
The final rule’s focus on “identical” applications does not appear to allow for any
flexibility with amending the data, so the existing data which will form the basis for the
new application must be measured by PERM criteria
- Does the salary meet 100% of the current prevailing wage?
- Will the employer be subject to lay-off issues that have occurred within 6 months of
-Does the elimination of the SVP based on DOT and the SOC job zone limitation require
that you submit a business necessity statement?
- If the employee gained experience with the employer, will it meet PERM’s requirement
that the jobs are not “substantially comparable?” Will the employer be able to document
via position descriptions, organization charts and payroll records that the position does
not require performance of the same duties more than 50% of the time?
-Will the employer be able to document the same information as above if the employee
was previously a contractor and gained the necessary experience while working as a
- Will the employer be able to sustain the proof burden if audited?
DOL intends to post specific instructions for the withdrawing of cases that are to be refiled
under PERM at http://workforcesecurity.doleta.gov/foreign/
PERM Labor Certification - Qualifications and Job Content: Qualified Workers, Business Necessity, ONET’s
Job Zones and SVP Levels, Alternative Experience, Experience Gained on the Job.
Combination of Occupations, Alien’s Influence and Control
PERM Labor Certification - Definition of “Qualified Worker”
Job Qualification through Reasonable Period of On-the-Job Training: What it does not
mean – DOL clarified that it does not mean that a U.S. worker who failed to meet the
employer’s stated minimum requirements, such as education, training or years of
experience, must be deemed qualified.
What it does mean – If a worker lacks a skill that may be acquired during a reasonable
period of on-the-job training, the lack of that skill is not a lawful basis for rejecting an
otherwise qualified worker. No definition is provided as to what constitutes a “reasonable
period” of training as it may vary by occupation, industry, and job opportunity.
Note: The discussion in the Supplementary Remarks seem to clarify that the DOL will
be looking at item 14 of section H of the ETA 9089, which refers to specific skills and
other requirements, to see whether these requirements could be learned within a
PERM Labor Certification - Educational Equivalency
The final rule eliminated a requirement that employers consider whether a U.S. worker’s
experience, training and education is the equivalent of a required degree.
PERM Labor Certification - Business Necessity
The proposed regulations would have disallowed any requirements other than years of
experience, and education unless special conditions were met. The final rule eliminates
this provision and it retains the Business Necessity standard adopted by BALCA in
Information Industries (88-INA-92, February 9, 1989)(en banc). To establish business
necessity an employer must demonstrate that the job requirements bear a reasonable
relationship to the occupation in the context of the employer’s business and are essential
to perform, in a reasonable manner, the job duties as described by the employer.
PERM Labor Certification - O*NET’s Job Zones and SVP levels
Unless documented as arising from business necessity, the job duties and requirements
must be those normally required for the occupation AND must not exceed the SVP level
assigned to the occupation as shown in the O*NET job zones. Business necessity
documentation will be required in an audit.
Note that there is great confusion today regarding how to correct interpret the job zones
in O*NET. The final regulations ignore the pleas of commentators to the regulation
seeking clarification of the interpretation of these job zones. Many commentators also
felt that the SVP levels did not adequately reflect the employer’s true requirements. The
final rule merely explains that a business necessity test can be used if the requirements
exceed the SVP, and that a revision of the SVP is beyond the scope of this rule.
Apparently, a clarification of the SOC job zones is also beyond the scope of the rule.
PERM Labor Certification - Foreign Language Requirements and Expansion of Rule
The final rule continues to allow for “business necessity” to justify the requirement of a
foreign language. Furthermore, DOL has expanded the rule to include other possible
business justifications for a foreign language requirement such as the need to
communicate effectively with one’s co-workers or subordinates. Safety considerations
in certain working environments may also support a foreign language requirement.
The regulations at 656.17(h)(2) list the factors which may be used to demonstrate
business necessity such as the need to communicate with a large majority of the
employer’s customers, employees, and contractors. It also describes the type of
documentation that must be retained: the number and proportion of its clients,
contractors, or employees that do not speak English; detailed plans to market to a foreign
country; and detailed explanation why the duties include frequent communication with
PERM Labor Certification - Combination of Occupations
The final rule retains the current standard in section 656.17 (h)(3) allowing justification
for combination of occupations showing that the employer normally employs such
individuals, or that it is customary in the industry, or it is a business necessity.
PERM Labor Certification - Alternative Experience Requirements –Some Restrictions Retained
Under section 656.17(h)(4) of the final rule, an employer may specify alternative
requirements that meet the standards set forth by BALCA in Matter of Francis Kellogg,
(94-INA-465, February 2, 1998)(en banc). However, DOL cautions that even where the
employer’s alternative requirements are substantially equivalent but the alien does not
meet the primary job requirement and qualifies through the alternative requirements, such
alternative requirements will be viewed as unlawfully tailored to the alien’s qualifications
unless the employer indicates that applicants “with any suitable combination of
education, training or experience are acceptable.”
PERM Labor Certification - Experience Gained On-the-Job: New Standards
Although the NPRM provision that flatly prohibited any experience gained working for
the employer in any capacity was not retained, some new standards are promulgated --
some are restrictive, some surprisingly liberal.
PERM Labor Certification - Dissimilar Jobs
An employer may use experience gained by the alien in a different job if it can prove that
the experience is not “substantially comparable” to the job for which certification is being
sought. “A substantially comparable job or position means a job or position requiring
performance of the same duties more than 50% of the time.” Evidence would include
“position descriptions, percentages of time spent on various duties, organizational charts,
and payroll records.” (pp. 122-123).
Note that under 656.17(i)(3)(i), DOL includes both alien “employees” and “contract
employees.” The latter category appears to refer to employees whom the employer
previously contracted perhaps as independent contractors, but not to the individuals used
by a contracting firm that were employed by that entity.
PERM Labor Certification - Disallows any Education or Training Paid by the Employer
Although experience may be gained in a different job, an employer may not use any
educational or training requirements that it paid for. Presumably this might include
educational or training courses in advanced information technology such as Microsoft or
other certifications. Question J23 of ETA-9089 asks: “Did the employer pay for any of
the alien’s education or training necessary to satisfy any of the employer’s job
requirements for the position”?
PERM Labor Certification - New, Expanded Definition of “Employer”
DOL had intended to expand the definition of employer to disallow experience gained
with predecessor organizations (such as entities that were acquired), successors-ininterest,
a parent, branch or subsidiary, or affiliate, wherever located. In the face of
overwhelming opposition to the provision, even from union organizations, DOL agreed
that this definition was too broad and set forth a new definition. Section 656 17(i)(5)(i)
states: “The term ‘employer’ means an entity with the same Federal Identification
Number (FEIN), provided it meets the definition of an employer at section 656.3.
Persons temporarily in the U.S. cannot be employers.
Note: This new rule appears to allow employers to use experience gained by foreign
entities, since presumably they do not have federal FEINS, as well as experience gained
while employed with acquired companies, and even subsidiaries and branches of the
same employer, as long as the FEINS are distinct. DOL appears to have heeded the
admonition of numerous commentators to the NPRM that a contrary rule would impede
business expansion and drive valuable employees who had been trained by the employer
to competitors because they could not be sponsored effectively by their own employer.
PERM Labor Certification - Alien Influence and Control Over Job Opportunity
In determining whether the job is subject to the alien’s influence and control, the criteria
listed in Modular Container Systems’ (89-INA-228, July 16, 1991) (en banc) will be
employed as set forth in section 656.17(l). No single factor, such as a closely held
corporation or partnership, or familial relationships, or the size of the employer, is
In order to demonstrate the existence of a bona fide job opportunity, in the event of an
audit, the regulations require that the following documentation be provided:
(1) Business related documents such as articles of incorporation
(2) List of corporate officers, titles, positions and relationships to the alien
(3) The financial history including the total investment of each individual
(4) Name of individual responsible for interviewing and hiring job applicants
If the alien is one of 10 or fewer employees, the employer must document any family
relationship between the employees and the alien.
PERM Labor Certification - Schedule A
Employers will continue to file Schedule A applications with the Department of
Homeland Security (DHS) as part of the I-140 petition process. The application must
contain the ETA Form 9089, “Application for Permanent Employment Certification,” a
prevailing wage determination, and evidence that a notice to a bargaining representative
(if applicable) or employees has been made in regard to the application. As with cases
filed with the Department of Labor (DOL), the notice must be posted for at least 10
consecutive business days in conspicuous places where the employer’s U.S. workers
would be expected to see it, as well as in any and all in-house media that might normally
be used for the recruitment of similar positions in the company. The notice should
include the address of the appropriate Certifying Officer, be provided between 30 and
180 days of filing, and contain information that would normally be included in an
advertisement, as well as the rate of pay. A copy of the posting and other related
documentation should be included with the Form I-140 filing. Failure to include
evidence of the notice may lead to the denial of the I-140 petition.
Group I of Schedule A continues to include professional nurses and physical therapists,
and Group II includes aliens to be employed aliens of exceptional ability in the sciences
and arts. The final rule also provides that performing artists of exceptional ability will
be included as in Group II of Schedule A. Under the current process, employers wishing
to file for performing artist of exceptional ability utilize Special Handling procedures.
Substantive requirements remain largely unchanged, though professional nurses may now
demonstrate eligibility though passage of the National Council Licensure Examination
for Registered Nurses (NCLEX-RN). Alternatively, eligibility may continue to be
demonstrated by a full and unrestricted (permanent) license to practice nursing in the
state of intended employment or a Certificate from the Commission on Graduates of
Foreign Nursing Schools (CGFNS). The supplementary material included with the final
rule clarifies that (1) a state license must be permanent; (2) passage of the CGFNS skills
test without the certificate will not suffice in terms of allowing for eligibility; and (3) a
prevailing wage determination for professional nurses will be required. As stated earlier,
the regulations require that all Schedule A positions include a prevailing wage
PERM Labor Certification - Schedule B
The final rule eliminates Schedule B.
PERM Labor Certification - Special Handling
Applications for certification of employment of college and university teachers are filed
by submitting a completed ETA Form 9089, “Application for Permanent Employment
Certification,” with the Department of Labor. The supplementary material to the final
rule clarifies that only college and university teachers are covered by special handling.
Litigation broadening those teachers defined by the Act as eligible for special handling
was considered and disregarded, at those filed for teachers outside of Alaska. The
supplementary material also clarifies that colleges and universities may utilize special
handling or regular procedures. In either case, the employer must be able to document
that the alien was found to be more qualified than each U.S. worker who applied for the
Documentation of “competitive recruitment and selection process” under special
handling procedures would include (1) a statement, signed by an official who has actual
hiring authority outlining in detail the recruitment procedures undertaken, including the
total number of applicants for the job opportunity and the specific lawful job related
reasons why the beneficiary is more qualified than each of the U.S. workers who applied
for the job. Documentation would also include a final report of the body making the
selection, as well as a copy of an advertisement in a national professional journal,
evidence of other recruitment sources utilized, and a written statement attesting to the
degree of the beneficiary’s educational or professional qualifications and academic
achievements. The posting of a notice is also required. Applications must be made
within 18 months of the selection. It is expected, however, that previous practice will
continue whereby after the 18 months has passed, the employer can again test the labor
market in compliance with Special Handling requirements and file under special handling
PERM Labor Certification - Team Sports
Employers filing applications on behalf of foreign nationals to be employed in
professional sports teams will continue using existing special procedures and will
continue using ETA Form 750, “Application for Alien Employment Certification.”
Applications will continue to be filed at the national office of the Department of Labor.
The DOL is expected to issue a further directive detailing the procedures to be followed
in filing for individuals who are to be employed by professional sports teams.
Further, as is currently the practice, in computing the prevailing wage for a professional
athlete when the job opportunity is covered by professional sports league rules or
regulations, the wage set forth in the rules is regarded as the prevailing wage.
PERM Labor Certification - Layoffs
Although the NPRM required employers to document that it had notified and considered
all potentially qualified laid-off US workers in the area of intended employment, the final
rule only requires that employers notify and consider workers it has laid off in the 6
months immediately prior to filing the application, not those laid off by other employers.
The employer is required to notify and consider those laid-off workers in the occupation
for which certification is sought or in a related occupation (defined as any occupation that
requires workers to perform a majority of the essential duties involved in the job). A
layoff is defined as any involuntary separation of one or more employees without cause
or prejudice, and includes personnel actions such as reductions-in-force, restructuring, or
downsizing. The employer must document that they offered the position to those laid-off
workers who are able, willing and qualified for the job, and document the results of their
consideration of such workers.
The CO may order post-filing supervised recruitment based on labor market information
and may at that time take notice of industry layoffs. However, the employer must only
attest on the ETA 9089 form to whether it has laid off its own workers.
PERM Labor Certification - Audit Procedures
The CO of the PERM Processing Center can request an audit of any permanent labor
certification either for cause or randomly. If selected for audit, the Employer will receive
an audit letter specifically stating the additional documentation to be submitted, set a date
30 days from the date of the audit letter for submission and advise that the application
will be denied if the information is not received by the deadline. If the employer does not
respond as required, this will be considered a refusal to exhaust administrative remedies
and no review is available either administratively or judicially. At the discretion of the
CO, the Employer may also be required to conduct supervised recruitment for any future
labor certification filings for up to 2 years. The CO may grant one extension up to 30
days from the initial 30 period in which to respond to the audit letter. After receipt of the
response from the Employer, the CO may also request additional information and/or
documentation or require that the Employer conduct supervised recruitment.
PERM Labor Certification - Supervised Recruitment
When supervised recruitment is requested by the CO, either after receipt of an audit
response or as part of the mandated supervised recruitment when an Employer has
previously failed to respond to an audit letter, the requirements are similar to supervised
recruitment under the old basic procedure. The Employer is advised to place an ad in a
newspaper of general circulation for three days including a Sunday or for one edition of a
professional, trade or ethic publication. The Employer must submit a draft of the
proposed ad to the CO for approval within 30 days of the notification that supervised
recruitment is required. The CO will approve the ad and direct the timing of the
advertisement. The Employer shall notify the CO when the ad will appear.
The approved ad must advise applicants to send resumes or applications to the Certifying
Officer including an identification number and address as designated by the Certifying
Officer. The ad must describe the job opportunity including a wage rate that meets or
exceeds the prevailing wage rate and summarizes the minimum job requirements as
contained in the application form and offer training if the job would normally require the
Employer to provide training. The wages, terms and conditions of employment must be
as least as favorable as those offered to the alien. The CO may also require other specific
recruitment efforts containing the same information.
The recruitment report must be submitted within 30 days of the CO’s request for the
report. The Employer must submit a detailed written report signed by the Employer and
contain the following specific information:
Identify each recruitment source by name and document contact by letters to sources such
as unions, trade associations and colleges and universities with responses if any.
• Ads should be documented with tearsheets, publication affidavits or dates copies
from web pages.
• Also include the number of U.S. workers that responded with names, addresses
and resumes except for those who sent resumes to the CO and specify number of
interviews and job title of person who conducted the interview.
• Specific lawful job-related reasons for not hiring each U.S. workers must be
provided. If an applicant is rejected because of lack of skills to perform the job
duties, additional documentation must be provided that the applicant could not
acquire the skills during a reasonable period of on-the-job training.
If the Employer does not respond within the 30 days, the CO shall deny the application.
The CO has discretion to grant one extension to the Employer.
PERM Labor Certification - Labor Certification Determinations
The Chief, Division of Foreign Labor Certification is the National Certifying Officer.
The NCO and the COs of the PERM Processing Centers have authority to certify or deny
labor certification applications. Labor certification applications with special or unique
problems can be referred to the NCO. The NCO can request that certain types of labor
certifications be handled at the ETA national office.
The decision to grant or deny a labor certification is based on a decision of whether or not
the Employer has met the requirement that there are no U.S. workers who are able,
willing, qualified and available for and at the place of the job opportunity. The Employer
must consider whether a U.S. worker could acquire the necessary skills during a period of
on-the-job training. For a job opportunity as a college or university teacher, the U.S.
worker must be at least as qualified as the alien. The CO must also consider whether the
employment of the alien will adversely affect the wages or working conditions of U.S.
workers similarly employed.
The CO shall notify the Employer in writing either electronically or by mail of the
determination. If granted the CO must send the certified application and Final
Determination form to the Employer or if appropriate his agent or attorney. If the labor
certification is denied, the Final Determination will state the reasons, advise of review
procedure contained in the regulations and advise that failure to request review within 30
days of the date of determination constitutes failure to exhaust administrative remedies.
If a request for review is not timely made, the denial becomes the final determination of
the Secretary. If no request for review is made, a new labor certification can be filed at
any time. If a request for review is made, no new application in the same occupation for
the same alien can be filed until the review procedures are completed.
If the CO determines that the Employer substantially failed to produce required
documentation, produced inadequate documentation or made a material
misrepresentation or for other reasons, the CO may require the Employer to conduct
supervised recruitment in future filings of labor certifications for up to 2 years from the
date of the Final Determination. The Employer may request reconsideration of this
determination within 30 days of the date of the denial. The request for reconsideration
may not include evidence not previously submitted. The CO can reconsider the
determination or treat it as a request for review.
PERM Labor Certification - Request for Review
If a labor certification application is denied, or revoked, a request for review of the denial
or the revocation may be made to the Board of Alien Labor Certification Appeals
(BALCA) by the Employer. The Request for Review (RFR) is filed with the Certifying
Officer (CO) who denied the application and must be filed within 30 days of the date of
the determination. It must set forth the grounds for the request, include the Final
Determination, and may not include evidence not already in the record.
Upon receipt of a RFR, the CO must assemble an Appeal File and send it to the BALCA
and send a copy to the Employer. The Employer may furnish or suggest to the BALCA
that additional information be made part of the Appeal File if such information was
submitted to DOL before issuance of the Final Determination.
In considering RFR's the BALCA must afford all parties 30 days in which to submit or
decline to submit a legal brief or Statement of Position. The BALCA must either (a)
affirm the denial or revocation of the labor certification, or the affirmation of the PWD;
(b) direct the CO to grant certification, overrule the affirmation of the PWD; or (c) direct
that a hearing be held to consider the case.
PERM Labor Certification - Invalidation of Labor Certification
After issuance, a labor certification may be invalidated by DHS or a Consul of the
Department of State upon a determination, either by one of those agencies or by a court,
of fraud or willful misrepresentation of a material fact involving the labor certification
application. If evidence of fraud or a willful misrepresentation becomes known to the
CO or the Chief, Division of Foreign Labor Certification, he/she shall notify the DHS or
Department of State, as appropriate, in writing, as well as the DOL's Office of Inspector
If possible fraud or willful misrepresentation is discovered before a final labor
certification determination, the CO will refer the matter to DHS for investigation and
must send a copy to the DOL's Office of Inspector General. If 90 days passes without the
filing of a criminal indictment or information, or receipt of a notification from DHS,
DOL OIG, or other appropriate authority that an investigation is being conducted, the CO
may continue to process the application. If DOL learns a criminal indictment or
information is filed, the processing of the application will be halted until the judicial
process is completed. The CO must notify the Employer of this fact in writing and must
send a copy of the notification to the alien and to the OIG.
If a court finds there was no fraud or willful misrepresentation, or if the DOJ decides not
to prosecute, the CO is to decide the case on its merits. If a court, the DHS or
Department of State (DOS) determines there was fraud or willful misrepresentation, the
application will be considered invalidated, processing will be terminated, the CO must
send the Employer (and attorney or agent, if appropriate) a notice of the termination and
the reason therefore, with a copy to the alien and to the OIG.
PERM Labor Certification - Revocation of Approved Labor Certification
The CO, in consultation with the Chief, Division of Foreign Labor Certification, may
revoke an approved labor certification if he/she finds that the certification was not
justified. The CO must send the Employer a Notice of Intent to Revoke containing a
detailed statement of the grounds for revocation and the time period allowed for the
Employer's rebuttal. The Employer has 30 days within which to submit a response. If
the Employer fails to submit a rebuttal, the Notice of Intent to Revoke becomes final. If
the Employer files rebuttal evidence and the CO determines the certification should be
revoked, the Employer may file an appeal under Sec. 656.26. The CO must inform the
Employer within 30 days of receiving any rebuttal evidence whether or not the labor
certification will be revoked. If the labor certification is revoked, the CO will send a
copy of the notification regarding the revocation to the DHS and the DOS.