THE NEW PERM APPLICATION FORM AND PROCEDURE

Projected PERM Processing Time
 

It is projected that cases will be adjudicated within 45 to 60 days of filing, unless the case is selected for an “audit.” An audit is any request by the DOL for additional documentation or information following filing. An audit will presumably substantially delay the processing time. But, as PERM is an entirely new procedure, the actual processing times will not be known until PERM is operational and a number of cases have been filed.

Role of the State Workforce Agency
 

The role of the state workforce agency (“SWA”) will be limited to issuing a prevailing wage determination for the geographic location where the work is to be performed. PERM directs that the Department of Labor OES survey contain at least 4 levels, rather than the two current “entry” and “experienced” levels. Alternative private and governmental surveys provided by the employer may continue to be accepted by SWAs in the prevailing wage determination under certain conditions.

Required Recruitment
 

The employer retains flexibility as to what the content of the print ads and other recruitment must be. The two mandatory print ads must contain the job title, employer’s name, location of the position and a description sufficient to inform an applicant of the nature of the job, and instructions on how to apply, e.g. by sending resumes to the employer. The salary and specific requirements need not be stated; but if an employer elects to do so, the wage must be at least the prevailing and the requirements may not exceed what is contained in the application form and in-house posting.

Required Recruitment in Professional Cases
 

A professional position is one that requires a bachelor’s degree or its equivalent. PERM provides generally clear guidance on the basic types of recruitment in professional cases:

1.      2 Sunday newspaper print ads; or 1 Sunday print ad and one professional journal ad if the position requires “experience and an advanced degree” and such a journal is normally used for recruitment for such positions; AND

2.      a 30 day job order with the SWA; AND

3.      an in-house posting for 10 consecutive business days in which all duties, requirements and salary are stated; AND

4.      in-house media notification to employees if the employer regularly uses such media to announce same or similar jobs, to remain in place for the normal duration of such employer notification in non-labor certification cases;  AND

5.      3 additional types of recruitment, with the duration NOT stated in the regulations, such as:

·         employer’s external website

·        an independent online career service [note that an online ad appearing in the same newspaper as the print ad WILL count as one of the three additional types of recruitment]

·        job fairs

·        college recruiting

·        an in-house incentive referral plan

·        use of a professional recruiter

·        professional or trade organizations

·        local or ethnic newspapers

·        radio or TV ads

Recruitment for Non-professional Positions
 

Non-professional positions will require the same mandatory recruitment (i.e. items #1 - 4 above) as for professional positions. The three additional types of recruitment will NOT be required, but may be used, for non-professional positions.

Timing of Recruitment
 

All mandatory recruitment must take place in the period consisting of 30 to 180 days before filing. Only ONE of the 3 alternative types of recruitment may happen in the last 30 days.

Given that the two Sunday ads may be placed even just one week apart; the need for only one job order of 30 days; and no specified restriction on “bunching” the recruitment, it appears at this time that a case could be filed based on recruitment carried out over a 6 to 8 week period.

Recruitment Report Must be Signed and Retained Prior to Filing
 

A recruitment report must be prepared, signed and retained in the employer’s file. It is NOT submitted with the application on filing. The report must contain: a description of all recruitment steps taken and the results achieved, the number of hires, and if applicable, the number of U.S. workers rejected, “categorized by the lawful job related reasons for such rejections.” The Department of Labor certifying officer may “request U.S. workers’ resumes or applications, sorted by the reasons the workers were rejected.”

The ETA 9089 application form does NOT ask for any of the specific information related to the recruitment results. This information will only appear in the Recruitment Report.

Definition of a Qualified U.S. Worker
 

U.S. workers are only: U.S. citizens, U.S. nationals, permanent residents or temporary permanent residents, refugees, and asylees.

A U.S. applicant may not be rejected if the worker “can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.” There is no explanation of what a “reasonable” period consists of.

Experience Gained on the Job
 

PERM did not eliminate the ability of the foreign national beneficiary of the labor certification to qualify using experience gained with the same employer as long as the prior job was not “substantially comparable” to the labor certification position. A job will be considered “substantially comparable” if it “requires performance of the same job duties more than 50 percent of the time.”

Apparently, experience gained with an overseas parent company, U.S. affiliate, or predecessor company will not be considered experience gained with the same employer. This is based on the definition of “employer” as an entity with a particular Federal Employer Identification Number (FEIN). This means that experience gained with an overseas parent, affiliate, etc. may now be used to satisfy the experience component of a PERM labor certification application.

Limits on what Education and Experience may be Required in an Application
 

PERM processing will rely on a new system (called O*NET) for determining the normal experience and education requirements for labor certification positions. The problem with the O*NET system is that it greatly underestimates what many employers actually require for the positions. For example, a software engineer position may require at most a bachelor’s degree and two years of experience OR just a master’s degree, even for a senior level position.

The ETA 9089 asks if the employer’s “job opportunity’s requirements are normal for the occupation.” If the employer’s requirements exceed the O*NET’s limits, the employer must be prepared for an audit; or at least to have the processing delayed while the Certifying Officer asks for documentation that the “job requirements are supported by business necessity.”

Lay-off Information Requested in New Application Form
 

The new application form specifically asks if the employer has had a lay-off in the “area of intended employment” in the occupation involved in the labor certification within the 6 months prior to filing. If yes, the employer is obligated to notify and consider laid off U.S. workers for the position and state that it has done so in the application form.

“Conversion” of an Existing RIR or tradition case to a PERM case
 

First, please note that the term "conversion" is not a fully accurate term; the PERM regulations allow instead for the "re-filing" of cases that are identical to those previously filed. Any so-called conversion will require the filing of a fully qualifying, independently standing PERM labor certification application case. All of PERM's recruitment and procedural requirements must be met before the filing of such a new case.

A successful request to “convert” will result in the withdrawal of the pending application and will allow for retention of the original filing date as the “priority date.”

A traditional case may not be converted if the SWA has already placed its job order.

Considerations in "Converting" a Pending case
 

The decision to “convert” a pending RIR case will depend on many factors including whether your company wants to carry out additional recruitment, with its associated costs and resource issues or has had lay-offs (see above) and is willing to notify and consider laid off workers.

Additionally, a traditional case that has not undergone any recruitment will eventually require a 3-day ad that contains all job duties and the salary. Thus, keeping a traditional case on track without refiling it under PERM may result in the same or higher advertisement costs. A traditional case will also receive the greater scrutiny that all traditional cases receive in that all resumes from U.S. applicants will go to the state agency or to the Department of Labor’s new Backlog Reduction Centers.

Where a pending labor certification is the basis for an employee’s continued H-1B extensions beyond the 6 years, there are additional timing and tactical questions relating to refiling that need to be considered. If a strong RIR case has already been filed, it may be best to keep that case on track and not refile.

Another consideration is whether the employee would gain any immediate advantage from having a labor certification application approved more quickly. We have recently provided information about “retrogression” in the EB3 classification for those born in China, India and the Philippines. If an EB3 case were recently filed for such an employee, refiling may not be the best course as the employee would still face a long wait following labor certification before he or she could apply for adjustment of status or obtain an immigrant visa.

The employer may undertake the recruitment necessary to file under PERM and depending on the results of such recruitment, elect at that time to refile a new case or not. A pending labor certification case would not have to be withdrawn before undertaking PERM recruitment. A pending labor certification application may be withdrawn simultaneously with the filing of the new PERM case.

Summary
 

The PERM process is considerably less burdensome and restrictive than what was anticipated. The nature and extent of the recruitment and the timing are much more favorable than anticipated. Similarly, the definition of employer and the ability to use experience gained on the job are positive developments. Still, the O*NET system that will be used to assess “normal” requirements could result in delays and other unforseen challenges or even denials if the employer’s “business necessity” argument regarding its requirements is not accepted. Similarly, the restriction that “conversion” may only take place for “identical” jobs is potentially problematic.

This is an overview of some of the key areas. Our firm is in process of preparing a more detailed analysis of the PERM program for distribution to our clients by early February, by which time we anticipate that further information from the DOL will have come out.