NEW PERM REGULATIONS ALTER GREEN CARD LANDSCAPE

The new PERM regulations have been released and will govern all labor certifications filed on or after March 28, 2005 . All labor certifications filed prior to that date will be processed under current regulations. As noted below, old cases can be “converted” to PERM processing.

Pre-Filing Actions

B efore a labor certification can be filed with the federal processing center, the employer must obtain a prevailing wage determination (PWD) from the State Workforce Agency (SWA). Each SWA will have its own form for the PWD submission. Each SWA will also indicate its validity period for the PWD, but the period has to be between 90 days and 1 year. Employers may continue to use alternative wage surveys, with some limitations. The employer must pay 100% of the prevailing wage. SWAs will also take job orders for most occupations, which will be in effect for at least 30 days.

Filing a Labor Certification Under PERM

PERM labor certifications will be filed with ETA Form 9089, which can be filed electronically or by mail. If it is submitted electronically, the form is the only document that is submitted. The PWD information will be placed onto the form by the employer. Once the CO has electronically certified the application, the employer must sign it immediately in order for it to be valid. Applications submitted by mail must contain the original signature of the employer, the foreign national, and the attorney when they are received by the application processing center. The USCIS will not process I-140 petitions unless they are supported by an original certified ETA Form 9089 that has been signed by the employer, foreign national and attorney.

Re-Filing a Non-PERM Case Under PERM

If a job order has not been placed for a pending, non-PERM labor certification application, the LC may be re-filed under PERM without loss of the priority date under certain conditions. In order to re-file and maintain the priority date, the PERM application must be submitted pursuant to all PERM requirements and it must contain an identical job opportunity.

In order to re-file under PERM and preserve a priority date from an earlier case, the original LC must also be withdrawn. One issue of concern is that filing an application and stating the intention to use the non-PERM case's original filing date will be deemed to be a withdrawal of the original application. This deemed withdrawal occurs even if the request to use the original filing date is denied.

If a non-PERM LC is withdrawn prior to filing a PERM application, preservation of the existing priority date requires that the PERM application must be submitted within 210 days of the withdrawal of the original LC. The employer should be prepared to send a copy of the original LC, including amendments, to the CO, if requested.

A job opportunity in an old LC is identical to the new PERM LC if the employer, foreign national, job title, job location, job requirements, and job description are the same as those in the original application. The original application includes all accepted amendments up to the time that the application was withdrawn.

Job Duties

It is still possible to use business necessity to justify certain job requirements. However, generally, job requirements should be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level assigned to the occupation, as set forth in the O*Net J ob Zones.  Alternative experience requirements must be substantially equivalent to the primary requirements of the job opportunity. If the beneficiary is already employed by the employer and only qualifies for the employment based on alternative experience requirements, the certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable. Experience with the employer generally cannot be included, unless it is experience in a position not substantially comparable to the position for which LC is being sought or the employer can demonstrate that it is no longer feasible to train the worker for the position.
For purposes of PERM , an employer is an entity with the same Federal Employer Identification Number (FEIN).

Employer Attestations

The employer must certify the terms of employment. The terms to be certified include the prevailing wage, i.e., that the offered wage equals or exceeds the current prevailing wage; that the wage the employer will pay to the foreign national will equal or exceed the prevailing wage at the time that the foreign national begins work; that the wage offered is not based on non-guaranteed commissions, bonuses, or other incentives; that the employer has sufficient funds to pay the offered wage; and that the employer will be able to place the foreign national on the payroll on or before the foreign national's proposed entry to the U.S.

Notice

Employers filing a labor certification must provide notice to the relevant bargaining representative, if any. This notice must be provided within 30 to 180 days before filing the labor certification application. If there is not a bargaining representative, the employer must post a notice at the facility or location of the proposed employment in a clearly visible and unobstructed location for at least 10 consecutive business days. In addition, the employer must publish the notice in any in-house media, whether electronic or printed, in accordance with the normal procedures used for the recruitment of similar positions.

Recruitment

Recruitment reports must show proof of a job order placed with SWA for 30 days. The employer must also run two Sunday advertisements in the most appropriate newspaper of general circulation. If the job application requires experience and an advanced degree, the employer may substitute one Sunday ad for a professional journal ad, if the job would normally be advertised in a journal. These two steps must be completed at least 30 days prior to filing the labor certification, but no more than 180 days prior to filing the labor certification. The ads must include the name of the employer and they must direct applicants to report or send resumes, as appropriate, to the employer or agent. The nature and location of the job should be clear.

Recruitment for Professional Positions

If an employer is hiring someone for a professional occupation, the employer must also complete at least 3 of the 10 following recruitment efforts:

• recruitment at job fairs;
• recruitment on the employer's website;
• job search website other than the employer's site (newspaper's site would be acceptable);
• on-campus recruiting;
• use of trade or professional organizations for recruitment;
• use of private employment firms;
• employee referral program with incentives;
• use of campus placement offices (notice sent to school is enough);
• use of local and ethnic newspapers;
• use of radio and television advertisements.

Only one of these efforts may be conducted solely within 30 days of filing the labor certification application. None may take place more than 180 days prior to filing the application. Professional occupations are those that typically require a bachelor's degree. Even if the employer is not requiring a bachelor's degree for the position, the professional recruitment must occur if the occupation is on the list of professional jobs.

Recruitment Report

The employer must prepare and sign a recruitment report, which describes the recruitment steps undertaken and the results achieved. It must set forth the number of persons hired, the number of U.S. workers rejected, and the lawful job related reasons for such rejections. Though the names of the U.S. workers are not required to be included on the recruitment report, the CO may request the resumes of the rejected workers, sorted by the reasons that the workers were rejected.

On-the-Job Training

A U.S. worker is considered able and qualified for the job 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. Such period is not defined, as the DOL feels that the period will vary by occupation and other factors.

Layoffs

If the employer has laid off employees in the geographic area of intended employment within 6 months of filing an application in the occupation of the layoffs, the employer must document that it has notified and considered all potentially qualified laid-off U.S. workers.

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