Historical Perspective: How DOL Arrived at PERM

The Department of Labor’s certification authority is based on 8 USC 1182(a)(5)(A), which provides that a foreign national cannot be granted permanent status in the United States unless the Department certifies that:

• There are not sufficient United States workers who are able willing, qualified, and available at the time of the application for a visa and admission into the United States at the place where the alien is to perform the work; and
• The employment of the alien will not adversely affect the wages and working conditions of similarly employed United States workers

Early in this process the Department required supervised recruitment for all labor certification cases.  Supervised recruitment required the State Workforce Agency to direct the employer’s recruitment for qualified, available US workers and to designate an address at a SWA office for interested job seekers to send resumes.  A SWA processing specialist would then evaluate resumes, if any, and forward them to the employer for review and action.

This process proved very expensive for the states and the Department.  The Department of Labor does not charge a filing fee for the labor certification process and funds certification operations with general budget funds.  And the Department provided cash grants to SWAs to pay the costs of administering the process.  Gradually, years-long backlogs developed from a lack of funding and even the funding provided was viewed as a significant drain on the Department’s resources.

In 1998 the Department devised a recruitment process it named Reduction-in-Recruitment, which allowed employers to conduct pre-filing recruitment and then to submit proof of the recruitment and the results of the recruitment to the Department for processing.  If the employer met certain requirements, the case would be processed without further recruitment required.  If the employer failed, the Certifying Officer referred the case for supervised recruitment.

Eventually even RIR operations became too expensive and resulted in backlogs that exceeded two years.  In May 2002 the Department published proposed regulations to streamline the entire process so that most filings would be made electronically, employers would always conduct pre-filing recruitment, and the employer would forward no supporting documents to the Department, but would instead sign an attestation under penalty of perjury and be subject to random audit to confirm the facts attested to in the application.  After several years of planning, the Department finally unveiled the new functioning system on March 28, 2005: Program Electronic Review Management, or PERM.

Evaluation and Planning Before Employer Places Ads

Good planning involves working through the entire process before placing an advertisement, seeking a prevailing wage or filing a PERM case.  Good planners will evaluate all company and employee information and prepare a draft PERM application and I-140 and I-485 – in effect preparing all necessary forms and applications for the entire process through to obtaining the green card.

Why do this much work in advance?  The answer is that problems can arise at various stages in this process.  By failing to evaluate all potential problems, an attorney may force the employer into a situation that is difficult or impossible to resolve at a later stage in the process.  Similarly, obstacles to adjustment of status or qualification in one of the employment-based preference categories may result in an employee being ineligible for a green card through employment.  Good planning means adequately evaluating the entire case from start to finish before filing a single document with the government.

The Position’s Location

Advertising and prevailing wage data must be prepared with regard to the “area of intended employment” – this means the area within normal commuting distance of the place of intended employment.  Places within MSAs or PMSAs are deemed normal commuting distance, areas within CMSA will not automatically be deemed to be within normal commuting distances.  The borders of PMSAs, MSAs, or CMSAs are not controlling in the identification of the normal commuting area and therefore an employer location just outside of such a boundary may still be considered within normal commuting distance.  Advertising in the wrong newspaper or changing worksite addresses before the green card is finally issued by DHS may result in the application failing and the employer having to begin anew.  For this reason it is important to estimate the duration of the process for each employee and then to also estimate whether that employee’s job will likely move while the application is pending.

Wages and Salaries

The Department passed regulations providing for a new system of four levels of wages two replace the old system of two levels.  This has resulted in relief for many employers seeking to certify mid-level positions because the previous two-tier system provided unrealistically high prevailing wages for most employees falling in between new hires and those with senior experience.  However, under the new regulations, employers must pay 100% of the determined prevailing wage for all labor certification and H-1B cases filed after December 8, 2004.  The old rule allowed employers to pay 95% of the prevailing wage.

Employers may challenge wage determinations within thirty days by filing a request in writing to SWA that made the determination and the request must identify the specific wage request, the grounds for the request and include all materials submitted to the SWA up to the date the determination was made.  The SWA will then forward the request to the national processing center and then to a Department of Labor Certifying Officer (CO) who may affirm, modify, or remand the wage to the SWA for further action.  Employers may also appeal the CO’s decision to BALCA within 30 days of the CO determination by making a request in writing to the CO.

How Department of Labor Calculates the Prevailing Wage

While Department of Labor now processes prevailing wage requests directly, the guidelines DOL gave to State Workforce Agencies to process prevailing wage requests is useful in anticipating the wage Department of Labor will calculate based on the fact you provide.

First the wage specialist looks at O*NET to find the occupation listed there that most closely matches the description provided by the employer.  Then the specialist reviews the O*NET Job Zones and chooses the experience “zone” that most closely matches the minimum requirements provided by the employer.

Then, for occupations listed in Job Zone 1, if the employer’s experience requirement is equivalent to that described in an:

• SVP of 1 (experience requirement of a short demonstration), enter a 0 in the Wage Level Column
• SVP of 2 (experience requirement of anything beyond short demonstration and up to 1 month), enter a 1 in the Wage Level Column
• SVP of 3 (experience requirement of over 1 month and up to and including 3 months), enter a 2 in the Wage Level Column
• SVP of 4 (experience requirement of over 3 months up to and including 6 months), enter a 3 in the Wage Level Column

For occupations in Job Zones 2 through 4, if the employer’s experience requirement is:

• In the low end of the experience and SVP range, enter a 1 in the Wage Level Column
• In the high end of the experience and SVP range, enter a 2 in the Wage Level Column
• Greater than the experience and SVP range, enter a 3 in the Wage Level Column

Then, the specialist looks to see if the employer’s minimum education requirements exceed those generally required for the position as provided by O*NET.  If the minimum education the employer requires on the wage request form is more than the usual contained in Appendix D, enter a 1 in the Wage Level Column (for example if the employer requires a Master’s and O*NET suggests a master’s degree is appropriate).  If the minimum education the employer requires on the wage request form is more than the usual contained in Appendix D by more than one category, enter a 2 in the Wage Level Column (for example if the employer requires a Ph.D. and O*NET suggests a bachelor’s degree is appropriate)

Finally, the specialist will enter a 1 one on the worksheet in the Wage Level Column if the employer lists tasks, work activities, knowledge or skills not listed in the O*NET sections.  Additionally, where a license is required to be employed in a certain field by national or state licensing laws, licensed workers will be considered to be performing work at a Level 2.

The specialist determines which wage level applies based on how many points over the baseline level the subject job's requirements are.  Level I wages are generally those that require no special knowledge or experience above the education and experience qualifications listed as normal in O*NET's description of the job.

Minimum Education and Experience Requirements

O*NET now controls and uses “job zones” instead of SVP.  For many jobs, this isn’t a big change, but for many computer consulting and engineering positions, it appears that requiring a bachelor’s plus five years of experience or a master’s degree will exceed the Department of Labor’s imputed industry standard for these positions, while it did not using the previous SVP standards.

It is wise for the HR professional to review the O*NET job description and minimum requirements for the position when crafting a position’s duties.  O*NET can be consulted on the Internet at http://online.onetcenter.org/.  For HR professionals familiar with the Dictionary of Occupational Titles (DOT), the O*NET website offers a DOT to O*NET crosswalk.

Because India, China, and the Philippines now have three year backlogs for third preference category petitions, the second preference category is a highly sought after status for many information technology professionals.

Experience Gained On-the-Job

Under the old rules, it was difficult to argue that experience should count in the application where the foreign worker gained the experience on-the-job at the applicant employer.  Under the new regulations it is still difficult, but with the improvement that the new regulations provide a clear standard: to use experience gained on-the-job, the employer must demonstrate that the job in which the foreign worker gained the experience is not “substantially comparable” to the job the employer seeks certification for.  The regulations state that the two jobs are substantially comparable if they share more than fifty percent of the job duties as measured by time spent working.

Schedules A and B

Schedule A is a list of positions that do not require a labor certification because the Department of Labor has found that there is a shortage of qualified US workers and the employer therefore need not test the labor market to prove that shortage.  The notable change to Schedule A is that performing artists of exceptional ability have been added to the list.  Performing arts had some difficulty qualifying as artists under the old regulations and this should significantly ease the difficulty of filing Schedule A cases for performing artists.

Schedule B was a list under the old regulations of positions that did not qualify for labor certification because the Department of Labor found that there were generally enough qualified US workers available for such jobs.  The list included some service industry positions and “blue collar” occupations.”  But even if a position was listed on Schedule B, a waiver was available because, as the Department noted in the preamble to the new regulations, it was not possible for the Department to know for certain that there were no qualified US workers available for all Schedule B positions in every town in the United States.  Because the waiver process under the old regulations entailed a test of the job market virtually identical to the normal labor certification process, Schedule B constituted little more than advice to employers that they ought to be able to find a qualified US worker for positions on the list.  The new PERM regulations eliminate schedule B.

Notice Requirements

In addition to the customary posting notice required under the old regulations, employers must now publish information regarding the job for which certification is sought in “all in-house media in accordance with the normal procedures used for the recruitment of other similar positions.”  So in addition to the ten-day posting notice required under the old regulations, employers must be cautious under the new regulations to post notice where it would normally be posted in the course of recruiting for the same or a similar position.  And despite comments to the proposed regulations opposing the continued requirement to post notice for Schedule A jobs which are not subject to the labor certification requirement, the Department has retained this requirement and employers must post notice for Schedule A positions such as nurses.

The posting notice must be conspicuously displayed at the worksite location for ten consecutive business days.  And notice must be made between 30 and 180 days before the case is filed.

Pre-filing Advertising Requirements

Professional occupations are those for which a bachelor’s or higher degree is the usual requirement for entry into the occupation.  Nonprofessional occupations are those which do not customarily require a bachelor’s or higher degree for entry into the occupation.  The rules for recruitment for professional occupations are found at 20 CFR §656.17(e)(1) and for nonprofessional occupations at 20 CFR §656.17(e)(2).

Professional Positions

For professional positions the employer must place a 30-day job order with the appropriate SWA and two print advertisements both in Sunday editions of an appropriate general circulation newspaper, plus three additional steps from among those listed in the regulations: (1) employee referral bonus program, (2) online job listing, (3) listing in a professional or trade publication, (4) notice of the job opening at a campus placement office for positions requiring a degree, but no experience, (5) local and ethnic newspapers, to the extent appropriate, (6) radio and television advertisements.  The new regulations provide that a maximum of one of these steps may be taken within 30 days of filing.

Nonprofessional Positions

For nonprofessional positions, the employer must place only the 30-day job order with the appropriate SWA and two newspaper advertisements both in Sunday editions of an appropriate general circulation newspaper.

Audits, Denials and Appeals

PERM relies for integrity upon two types of audits: (1) those generated by the answers to various questions on form ETA 9089 as determined by a changing and secret Department algorithm, and (2) random audits.  It is unclear at this early stage how long audited cases will be delayed.  The delay will likely depend on the number of cases audited and the results of audits – that is to say that the Department will likely audit fewer cases if it finds from its initial audits that very few applications have been improperly prepared.

In the event a case is denied, employers have a right to request the CO’s reconsideration, refile a case, or to seek administrative review from the Board of Labor Certification Appeals (BALCA).  Because the administrative review process imposes significant delays, for most employers it will be wise to simply refile.

Revocation

The 2005 PERM regulations give the Certifying Officer the right to revoke a labor certification application at any time where the certification was not justified.  Unfortunately, there is no time limit imposed on the Certifying Officer’s revocation power.

Employer’s Duty to Retain Records for Five Years

Employers must retain all supporting documents for the labor certification for five years from the date the application is filed with the Department.  Employers are subject to random audit and the CO’s authority to revoke a labor certification extends indefinitely.  Failure to adequately prepare and retain evidence substantiating the attestations the employer swore in the application, could ultimately lead to civil and criminal penalties.

Nurses

Schedule A certification under the new rules requires a CGFNS Certificate rather than merely passage of the CGFNS practical nursing exam.  However, documentation that the nurse has passed the NCLEX-RN exam, or holds a full and unrestricted permanent license to practice nursing in the state of intended employment remains sufficient in the alternative as under the old regulations.

The effect of this change is to require employers to wait longer in a nurse’s credentialing process to be able to begin processing the immigration case.  It is often the case that foreign nurses have more difficulty with English language testing than they do with the practical nursing exam, and so for many employers this change in the regulations may set back the filing date by six months or longer.  Previously, employers could file an the I?140 petition with the old forms seeking the Schedule A exemption where the nurse had merely passed the practical nursing exam and this would allow months to resolve the English language testing and ultimate issuance of the CGFNS Visa Screen Certificate.  Especially in light of the current three-year backlog for third preference category cases from India, China and the Philippines, this new rule will add to the wait for many nurses.

Converting Pending Cases to PERM – “REFILING”

Employers may convert a pending case to the new PERM system only if the new filing is identical in every way to the earlier filing.  When interviewed Dr. Carlson, the person responsible for managing all foreign labor certification operations confirmed that “identical means identical.”  Therefore any change to wages, worksite locations, job titles, descriptions, minimum requirements for the position or any other factor will likely remove a case from eligibility for refilling.

Refiling requires withdrawing the underlying RIR or Supervised Recruitment case.  There is, of course, a significant risk in doing so because if the PERM case is ultimately denied, the foreign national loses his earlier priority date under the withdrawn application.  For foreign nationals subject to third preference category backlogs as well as H-1B workers relying on seventh-year extensions may find themselves in a difficult situation forced to leave the United States for a full year.

What is the purpose of refiling?  At the time a labor certification application is received for processing, the Department issues a priority date.  This priority date controls where the foreign national sits in queue in the event of a backlog in I-140 cases.  Because a fixed quota of permanent employment-based petitions may be granted each year, backlogs do develop in certain preference categories for specific countries.  Currently, there is approximately a three-year backlog for third preference category cases for foreign nationals from China, India and the Philippines.  But backlogs could develop for other countries unexpectedly.  This makes the foreign national’s priority date very important and retaining a previous RIR priority date may make the difference between waiting an additional six months, or three years to secure an approved I-140.

It appears from the regulations a PERM case may be filed without withdrawing an earlier case and thus afford two separate chances to receive a favorable determination.  For many foreign nationals it is wise to choose this route as processing standards and preferences under PERM may be somewhat uncertain in the months ahead.

Refiling carries serious consequences and must be carefully considered: if the Department determines that the refilled application is not identical to the original application, the refilled application will be processed using the new filing date, and the original application will be treated as withdrawn.  Similarly, if the refilled application is denied, the filing date on the withdrawn application cannot be used on another application for employment certification.

Under the new regulations refiling must be accomplished within 210 days of withdrawal of the underlying labor certification application.

Filing I-140 and Later Applications with USCIS

Under the old regulations, the Department of Labor issued a certified original notice of labor certification displaying a special multi-colored stamp on the original signed forms submitted to the Department by the applicant employer.  Under the new regulations filing is accomplished electronically, but then the employer submits to DHS the original signed forms that it retained during labor certification processing.  The employer must include this original signed form with the I-140 petition made to DHS after the labor certification is approved.

PERM and Layoffs

If the employer has had a layoff in the area of intended employment within six months of filing the application that involves the same job, or a related job, then the employer has to document that it has notified and considered all potentially qualified laid off US workers for the job opportunity and document the results of the notification and consideration.  20 CFR §656.17(k).  The regulation reads:

If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.

The employer is not required the disclose layoffs that occurred before the six month period preceding filing the PERM application.

Determining Layoff Dates

Where layoffs are staggered or have flexible end dates, or employees receive compensation on payroll for a period after their last day of work, it may be difficult to determine a layoff date for the purpose of calculating the 180 days.  The six month time period has its origin in the Reduction in Recruitment labor certification filing process.  Under the RIR program, Department of Labor instructed Certifying Officer to consider available US workers.

Notifying Previously Laid Off US Workers of a Job Opportunity

Who to Notify:  The employer only must notify US workers.  A US worker is one who is a US citizen, U.S. national, lawful permanent resident (or certain temporary resident), refugee, or asylee.  20 CFR §656.3.The employer only needs to notify laid off US workers who worked in the same, or a related occupation.  A related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.  656.17(k)(2). 

How to Notify: There is no specific method identified in the law for notifying laid off employees of the new job opportunity.  Under old case law predating the PERM regulations, courts held that the employer must make a “reasonable effort” to contact the applicant and that the facts differed by case.  The American Immigration Lawyers Association sent proposed methods of contact to the Department of Labor to ask if the Department would accept them.  These included:

• Sending an e-mail to laid off U.S. workers;
• Mailing a letter or certified mail letter to laid off U.S. workers; and
• Including blanket language in termination letters advising laid off employees to check the company’s website for available job openings, and then posting the job opportunity on the labor certification on the employer's website

As of the date of this letter, Department of Labor has not yet responded to AILA’s inquiry.  Sending a certified letter with return receipt requested is probably the safest method of contact from the perspective of trying to document the employer’s efforts to contact laid off US workers.