PERM Recruitment Rules

Department of Labor and USCIS have issued important cases and regulations that govern labor certification applications. A company that files a PERM labor certification case without considering these important restrictions may face a denial years after initiating the process resulting in the beneficiary exhausting time in H-1B or L-1 status and having to depart the United States for a year with dependent family members.

USCIS and DOL rules sometimes conflict over whether a beneficiary qualifies for EB-2 or EB-3.  The best USCIS memo on point is the Cronin Memo issued March 20, 2000 titled "Education and Experience Requirements for Employment-Based Second Preference (EB-2) Immigrants.  This memo was added to the Federal Register as part of a federal court injunction against USCIS and may be found at Vol. 65 no 126, Monday July 3, 2000 page 41093.

Below are BALCA and BIA cases as well as USCIS memos that set forth the basic labor certification rules.
 

	Case	Issue/Rule	Date	BALCA No.
	Matter of Karl Storz Endoscopy-America	Employer must take first recruitment step or file the PERM application during the prevailing wage determination validity period. 20 CFR 656.40(c). Overturns Horizon Computer Services, 2010-PER-746 (05/25/2011)	12/01/11	2011-PER-00040
	Matter of Sanmina-Sci Corporation	Referral program must be (1) dated, (2) offer incentives, (3) be in effect during the recruitment period, (4) employees were on notice of the program.	01/19/11	2010-PER-00697
	Matter of Delitzer Corp.	Beneficiaries may qualify using experience gained on-the-job only if the old job has less than 50% of duties in common with the position that is the subject of the labor certification application; consider (1) job duties, supervisory responsibilities and minimum qualifications, (2) place in hierarchy, (3) employer's prior employment practices, (4) whether and by whom the higher position was filled previously, (5) whether the higher position is newly created, (7) percentage of time performing each duty in each job, and (7) the salaries of each position. This rule was added to 20 CFR 656.17(i)(5)(ii).	05/09/90	88-INA-482
	Matter of East Tenessee State University	"Preferred" qualifications are deemed minimum qualifications because they deter minimally qualified applicants from applying for the job.	04/18/11	2010-PER-00038
	Matter of Globalnet Management L.C.	Alternative minimum qualifications listed in items H-8 and H-10 must be substantially equivalent. 20 CFR 656.17(h)(4)(i). DOL properly uses the SVP code to determine substantial equivalency and not the H-1B 3-for-1 rule found at 8 CFR 214.2(h)(4)(iii)(D)(5). Bachelor's degree and two years experience is not substantially equivalent to no degree and 14 years of experience.	08/06/09	2009-PER-00110
	AGMA Systems LLC	Alternative minimum qualifications listed in items H-8 and H-10 (1) a Master's degree plus three years of experience, or (2) a Bachelor's degree plus five years of experience is substantially equivalent for the purpose of 20 CFR 656.17(h)(4)(i).	08/06/09	2009-PER-00132
	Matter of Quantifi, Inc.	An employer may not merge the reasons for rejecting several applicants and must instead identify the specific reasons for rejecting each candidate (editor's note: post Quantifi, it is best to provide a table in the recruitment report listing all applicants by name and the reason for rejecting each applicant who was rejected). An employer's evidence response to an audit notice is final; the employer may not submit documents in a motion to reopen/reconsider or on appeal to BALCA that were available at the time of its initial audit response.	05/12/11	2010-PER-00894
	Matter of Wing’s Tea House	The beneficiary must meet the minimum education and experience requirements no later than the date the labor certification was filed with DOL.  See also, Matter of Katigbak, 14 I.&N. Dec. 45 (R.C. (1971)	1977	16 I&N Dec. 158 (R.C. 1977)
	USCIS Yates Memo on PERM and I-140 Issues	The beneficiary must meet the minimum education and experience requirements no later than the date the labor certification was filed with DOL. DOL will provide duplicate labor certification approval notices at the request of a consular or immigration officer. H-1B extensions beyond 6th year available (1) for one year where labor certification pending for 365 days or longer, (2) for three years where I-140 petition has been approved. No 6th extension available if no approved I-140 and a labor certification has been pending less than 365 days.	09/23/05	HQPRD70/6.2.8