Labor Certification – PERM – Lin & Valdez L.L.P.

1. PREMISE ABOUT PERM

On December 27, 2004, the Department of Labor finally promulgated the long-awaited Permanent Labor Certification Regulation (PERM), which will take effect on March 28, 2005. The new regulations contain ambitious goals of the government to speed up the processing of labor certification application to within sixty days through electronic filings. The recruitment requirement and method required on the employers are also overhauled. The fundamental processing standard, however, is still based on the regulations existing prior to PERM. Rules about converting from regular or RIR labor certification application is also covered in the newly released regulations. This article will give our readers an overview of the new world of labor certification application under the new PERM regulations.

2. BASICS ABOUT LABOR CERTIFICATION

Under the U.S. immigration system, a key requirement in employment-based immigration is “labor certification”. Labor Certification is a document certified by the Department of Labor after an employer complies with certain filing and recruitment requirement proving that the employment of an alien under certain requirement for a specific position for a set of designated job duties will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employers need to prove that the employers, despite completing the required recruitment campaign, could not find a willing and minimally qualified U.S. worker to fill up the applied position.

Labor certification is not required for EB-1, EB-4 and EB-5 immigration application. It can be waived for national interest ground under EB-2. It, however, is mandatory for EB-3.

3. FILING UNDER PERM

The newly enacted PERM regulations have completely changed the way labor certification is to be filed and processed. In the very past, labor certification application has to be filed by an employer to the SESA of each state, and then wait for instruction from the State for conducting a recruitment campaign under the supervision of SESA. This “regular processing” was then improved and changed to RIR (Reduction in Recruitment) processing, under which the employer will first conduct an unsupervised recruitment campaign to establish a “pattern of recruitment” and then file petition to SESA. In either scenario, the State employment agency will preliminarily process the petition, and then forward the petition to Regional Offices of the Department of Labor for certification. While RIR was once lauded as a speedy processing, it has already slowed down to an intolerable level. As for the regular processing, due to the backlog caused by the influx of filings at the end of April of 2001 to catch with the sunset benefit of Section 245(i) of the INA, it has almost become meaningless to file under that regime for an employer who urgently need an alien worker to permanently fill a position.

Now comes PERM. Under PERM regulations, starting from March 28, 2005 all labor certification will be processed by Department of Labor directly. The SESAs, other than providing prevailing wage decision (see below), will no longer have any role in labor certification processing and thus greatly reduced the time required for the processing.

The Regulations replace the old Form ETA 750 A&B with a new combined From ETA9089. The regulations also call for a processing of between 45 to 60 days (with exceptions) after a PERM application is satisfactorily filed.

(i) Electronic Filing
Under PERM, the filing can be either electronically, or by mail. For electronic filing, the filing address is:

http://workforcesecurity.doleta.gov/foreign/form.asp

When filing electronically, the computer system will instruct the petitioner if any items on the filing is not accurately completed and the petitioner can cure the problem and re-file the form.

(ii) Post Filing
The filing, however, can also be completed by mail. To process the filings, the Department of Labor has established two processing centers at Atlanta and Chicago.

a. Atlanta Processing CenterThe filing address and contact information of Atlanta Processing Center is:

U.S. Department of Labor
Employment and Training Administration
Harris Tower, 233 Peachtree St. NE., Suite 410,
Atlanta, Georgia 30303
Phone: (404) 893-0101
Fax: (404) 893-4642
This Processing Center will have jurisdiction to process petitions for jobs located at the following states:

Alabama, Connecticut, Delaware, Florida, Georgia, Kentucky, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Tennessee, Vermont, Virgin Islands, Virginia, Washington DC, West Virginia

b. Chicago Processing CenterThe filing address and contact information of Atlanta Processing Center is:

U.S. Department of Labor
Employment and Training Administration
844 North Rush St., 12th Floor,
Chicago, Illinois 60611
Phone: (312) 886-8000
Fax: (312) 886-1688.
This Processing Center will have jurisdiction to process petitions for jobs located at the following states:

Alaska, Arizona, Arkansas, California, Colorado, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wisconsin, Wyoming

4. PROFESSIONAL VS. NON-PROFESSIONAL JOBS

The PERM regulations have divided jobs into professional and non-professional categories. Professional jobs refer to positions that usually require at least a college degree to perform. Non-professional means otherwise. To help the public to identify the nature of jobs under this categorization, the Regulations also published a non-inclusive schedule for professional positions. Please click Professional Positions to see the list.

5. RECRUITMENT REQUIREMENT FOR JOBS

Job Order
For both professional and non-professional jobs, the employer must place a job order for the job opportunity with State SESA for a period of 30 days. Job order is more like a notice about the job opportunity from the employer to the State employment agency. Each state maintains its job banks and data and the opening is such opened to the public for application. The starting and ending dates of the job order must be listed in the ETA 9089.In-House Posting
Similar to the “regular” and RIR labor certification application, the employer still need to post within the business premises an in-house notice about the job opportunity. The posting must last for at least 10 consecutive business days, and the notice period must be between 180 and 30 days before filing. The most important to remember about in-house posting is that, unlike other recruitment methods mentioned below, it must contain salary.Sunday Advertisement
The employer must place recruitment advertisement on two Sundays in a newspaper of general circulation in the area of intended employment. The advertisement must be placed at least 30 days, but not more than 180 days, prior to the filing. Two consecutive Sunday advertisement is allowed.Mandatory Use of Available In-House Media
Whether it’s for professional position or not, the employer must use any and all other available in-house media, electronically or printed, in accordance with normal procedures used by the employer for similar positions in the business. The key to this requirement is “normal procedure”. Therefore, if the employer ordinarily posts job opportunity in the company’s website, it is then mandatory to post on it for the applied-for position. If the employer does not normally use any other in-house media, the employer does not need to create one.Three Additional Recruitment Steps for Professional Jobs
For professional jobs, on top of the recruitment methods listed above, the employer needs to carry out at least three additional recruitment steps from the following 10 allowed methods:

(1) Job fairs
(2) Employer’s web site
(3) Job search site other than employer’s
(4) On-campus recruiting
(5) Trade or professional organization
(6) Private employment firms
(7) 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
(10) Radio and TV advertisement

Only one of the additional recruitment steps may take place within 30 days of filing. Dates and methods of each step must be listed in the filing

6. PREVAILING WAGE ISSUES

The new regulations have many new provisions about prevailing wage requirement for the application, including:

(1) Mandatory Determination Before Filing
One new provision under PERM is that each application must contain a prevailing wage determination made by the SESA of the state where the job is located. The wage determination is to be made by each state with forms they designate. There is not a centralized format for the wage request.

(2) Match with Prevailing Wage 100%
Once the prevailing wage is determined, the PERM regulations require employer to match the prevailing wage at least 100%. In other words, the actual wage to be paid for this position can not be lower than the prevailing wage. The 5% adjustment room from the prevailing wage is no longer allowed.

(3) 4-Level Wage System
One frequently criticized wage issue under the current system is that the prevailing wage determined by SESA is customarily too high because the OES provides only two-level wage determination. Hence, a non-entry and non-senior level position is frequently the victim of the system and is frequently determined by the SESA to require high level of salary. The PERM regulations mandates that, to ease this problem, the OES must provide 4 levels of wages corresponding to the experience and education requirement of the position, and the level of supervision. The additional two levels are to be created between the current level one and two. However, how the education and experience is to be divided for the purpose of determining wage is remained to be seen.

(4) What Are Included in the Wage
A frequently asked question is what are to be included in the wage offered by employer for the purpose of determining whether the actual wage matches with the prevailing wage. The rule of thumb is that if the payment is guaranteed by the employer and are not discretionary, it is counted. The payment guaranty may be from employment agreement or by law. What about commissions, bonus, or other incentives? The employer still needs to guarantee a wage that is no less than the prevailing wage. In other words, if those payment is not guaranteed, it does not count.

(5) When the Prevailing Wage Must be Paid
To sum it up, after the alien is granted permanent residency, i.e. after I-485 is granted. With the current speed of processing, it should be safe to say about 2 ~ 2 1/2 years from the day the employer starts recruitment activities.

(6) How Long the Determined Wage is Valid
The wage determined by the State is good for 365 days. If it is older that one year, the petitioner must obtain a new one from SESA.

7. SCHEDULE A POSITIONS AND SPECIAL HANDLING FOR COLLEGE TEACHERS

Schedule A Positions
Under the current system, professional nurses and physical therapist positions are included in “Schedule A”. These positions do not need to obtain labor certification from Department of Labor at all. In stead, the petitioner can file the adjustment of status petition directly to the Service Centers of USCIS, attaching a completed ETA form. The PERM regulations retain this provision, but incorporate the pre-determination on prevailing wage to the Schedule A position application. An internal posting listing prevailing wage is also required.

Special Handling for College and University Teachers
Application for college and university teachers can still be processed and examined through “special handling”, although PERM petition remains the applicant’s option. Under the regular labor certification, the employer must prove that it can not find a willing and minimally qualified worker to fill up the position, and job applicants are rejected on business-related ground. For college and university teachers, however, the standard is different if they opt to apply through special handling. If the college or university chooses to do so, the requirement is that recruitment activities are discharged through competitive recruitment and selection process. Also as a result of the selection process, the beneficiary is chosen because he/she is more qualified than each of the U.S. workers who applied for the job.

8. AUDIT & SUPERVISED RECRUITMENT

Audit
If the Certifying Officer (CO) find the case suspicious either in its content, recruitment activities, or the authenticity of the job opportunity, the CO can request for an audit of the case. The CO, however, can also randomly select cases for auditing. In that scenario, the employer will have to submit all requested document to address the CO’s concern. If the employer does not respond to the audit request, the case is deemed abandoned. In response to employer’s refusal to auditing, at the discretion of the CO, the employer may be required to conduct supervised recruitment for any future labor certification filings for up to two years.

Supervised Recruitment
Either as a part of the auditing, or independently requested, supervised recruitment is another weapon CO can yield to examine cases. Under the CO’s supervision, the employer will have to run additional advertisement for recruitment, and instead of instructing the job applicants to send resumes to the employers, the advertisement must instruct that all resumes are to be sent to COs. The employer must then submit a recruitment report to the CO detailing the result of the recruitment activities.Document Retention
Since the filing does not require filing of supporting document but the DOL retains the discretion to audit the recruitment and application, it is the employer’s obligation to keep the document recording the recruitment and application process. The retention period mandated by the Regulations is five years.

9. THE GOOD, THE BAD AND THE UGLY

While the PERM regulations have made certain improvement to the regular and RIR regulations, it also contains some provisions in the new regulations that are destined to create problems to the applicants and counsels. The following are some of our thoughts:
(1) The Good
The PERM regulation defines “Employer” as an entity with the same “Federal Employment Identification Number”. As such, foreign parent company or subsidiary, other affiliate companies under same control, and acquired company will not be the same employer for labor certification purpose under this definition as they do not have same EIN number with the applying company. This change is significant because it seems that as a result, unlike the current system, experience gained by the alien beneficiary from those entities can be counted and included as a part of the requirement for the position. This will certainly make applying for employees from the affiliate or foreign related companies much easier.

Another good thing about the PERM regulation is that it allows the employer to use experience gained by the alien in the same company as far as the experience is gained in a position that is not “substantially comparable” to the applied-for position. “substantially comparable” means requiring performance of same duties more than 50% of the time. Certainly, the employer will have to bear the burden to prove that.(2) The Bad
While the employer can use experience alien gained within the same entity under certain circumstances, the PERM regulations specifically ban the use of education or training paid by the employer for the alien beneficiary as a part of requirement. The employer just needs to attest to it in the filing. The interesting question is how the DOL knows whether employer ever paid for any training for the employee and if the employer, for example, pays only meals and traveling for certain training courses, will it also fall as a felon of this provision?(3) The Ugly: Skill Acquired After a Reasonable Period of Training
Under the current regulations, any applicant who lacks certain skill and as such fails to meet the employer’s minimum requirement for a position can be rejected. The PERM regulation, however, provides that the lack of certain skill is not a lawful basis for rejection if the job applicant is otherwise qualified and if the skill can be acquired during a “reasonable period” of on-the-job training. The problem is that the regulation does not define how long “reasonable period” is. Besides, if this provision is applied to the extreme, probably no case can be approved because all skills can be learned after training. This issue will be a birth bed to litigations in our opinion because it allows the DOL to subjectively decide what a reasonable period is.

10. CONVERSION AND REFILING

Many employers have already filed their cases under regular processing or RIR and are eagerly waiting for result. However, the creation of Backlog Reduction Center by the DOL have not eased any worry of the employers and the aliens as no answer is given as to how soon their cases will be processed. PERM regulations allow employers to withdraw pending cases and re-file the same under PERM as far as a job order has not been placed by SESA for the old cases. If the refiling is for “identical job opportunity” as the old petition and is filed within 210 days after withdrawal, the case retains the priority date assigned to the previous petition. This is significant because many aliens need to preserve the priority date to retain the benefit of the now repealed Section 245(i), and for H-1Bs to retain the chance to file 1-year extension after the expiration of 6-year in H-1B.

11. WORDS TO EMPLOYEES AND EMPLOYERS

The e-century is indeed ascended as now even the most conservative government agency is moving into this modern age. If the Department of Labor hold up to the PERM requirement, this surely will be an exciting timing for both the employers and employees to take advantage in resolving the status problem of the employees. Facing with this gigantic change, you need to act quickly and decisively. Contact us and we will accompany you to your goal.

12. HOW WE CAN HELP

The distance between the world and Lin & Valdez are now shortened to just a click on your mouse or a ring on the phones. For years Lin & Valdez has served many clients around the world that we have never met with.The distance, however, has never caused a problem to our service thanks to the modern technology. If you are an employer, personnel director, or human resource manager of a business entity, and you have questions regarding the PERM regulations, whether you have experience sponsoring labor certification petition before, please give us a call or a click. We have tremendous experience in labor certification procedure and now have accumulated great knowledge in the new system and we are more than happy to share our thought with you. To the eager employees, the door is opened. It is your time now to trod down to the permanent residency and we will guide you to that destination.

13. Sample Success Stories (Click Here)