On March 8,
2005, the U.S. Department of Labor (DOL) issued a
memorandum answering frequently asked questions (FAQ)
about DOL's new PERM regulations, which will go into
effect on March 28, 2005. Most of the FAQ repeats DOL's
previously published comments to specific sections of
the PERM regulations. However, DOL issued important
clarifications on how DOL will interpret the PERM
regulations and process PERM applications. Some
important clarifications from the FAQ:
Refiling of pending alien employment certifications
PERM regulations allow employers to refile pending
AECs and request retention of the original priority
date. DOL has stated that in order to retain the
original priority date, the PERM application must be
"identical" to the original application. The FAQs
state that an otherwise identical application (same
employer, same employer address, alien, job title, job
location, job requirements and job description) that
includes a new prevailing wage will be considered
Timing of recruitment.
All mandatory recruitment steps (print advertisements
and job order) must be completed at least 30 days
prior to filing of the PERM application. This means
that the period of pre-filing recruitment cannot be
reduced to less than 60 days.
Although the employer does not need to identify U.S.
workers who applied for the job opportunity, DOL may
request the resumes of the U.S. workers. Employers
must retain resumes for documentation of recruitment.
If an employer's PERM application includes any job
requirements beyond those specified by the DOL's
Standard Occupational Code (SOC) description for the
occupation, the employer's requirements will not be
considered "normal" for the occupation. The employer
may include requirements that are not "normal" to the
industry or that exceed the SOC's recommended Specific
Vocational Preparation (SVP). Doing so, however,
requires that the employer be prepared to provide
proof of the business necessity for these "additional"
requirements. Further, if the employer attests on the
PERM form that the requirements are "normal" to the
occupation, but includes additional requirements that
exceed those specified by the SOC's recommended SVP,
DOL will deny the application regardless of whether
the employer provides business necessity documentation
for the requirements if audited.
To view the
complete FAQ, please click here:
(Program Electronic Review Management) refers to DOL's
permanent labor certification regulations. Published on
December 27, 2004, PERM's effective date is March 28,
2005. For a detailed discussion of the PERM
regulations, please see the
2005 issue of Immigration Spotlight.