On December 27, 2004, the U.S. Department of Labor ("DOL") published new permanent labor certification application regulations. These regulations implemented DOL's Program Electronic Review Management (PERM) system. PERM introduced electronic filing of a simpler, attestation-based form, and initially raised (and met) expectations of both employers and individuals that lengthy processing times at DOL would finally improve.  The PERM regulations became effective on March 28, 2005.

In the 2004 preamble to the PERM regulation, DOL stated a goal of processing PERM Labor Certification (LC) applications within 45 to 60 days of filing.  Unfortunately, during most of the time PERM has been in effect, this processing time has not been met.  PERM cases are taking a minimum of six to nine months to be processed after filing with DOL, and in an increasing number of cases, more than a year after filing.  DOL has since stated that the 45-60 processing time was only a "goal" and was never guaranteed by the regulations or the agency.

With most individuals focused on the promised speed of PERM processing, they may not appreciate the significant procedural and regulatory changes that the PERM regulations also bring. This article is an overview of the PERM regulations, their requirements, and the PERM processing system.

PERM application process

The PERM filing system is similar to the DOL's previous Reduction in Recruitment (RIR) program, in that it relies on recruitment completed in advance of filing the application. Under RIR, the employer submitted all of its pre-recruitment and the application to DOL and asked for a waiver of supervised recruitment and certification of the application.  In contrast, PERM is an attestation-based system, and no documentation of the recruitment or any other documentation is submitted to DOL when the PERM application is filed.  The employer must maintain all supporting documentation in case it is later requested by DOL in an audit of the filing. To qualify for labor certification under the PERM program:

• The employer must obtain a prevailing wage determination (PWD) from a State Workforce Agency (SWA) and it must be valid when the PERM application is filed with DOL.
• The employer must complete the necessary recruitment steps during the 180 days prior to filing the application with DOL.
• The employer may file the application either electronically or by mail with DOL. Only the DOL form must be filed; no supporting documentation is submitted with the original application.
• After initial review of the form, DOL will either certify, deny, or issue an audit letter on the application.
• Following certification, the employer and alien must immediately sign the certified LC to validate it.
• The certified LC application is valid for 180 days after approval, unless the employer submits it to U.S. Citizenship and Immigration Services in support of an I-140 Petition.  If an I-140 is filed while the LC is valid, the LC is valid indefinitely
• Employers must maintain supporting documentation for the PERM application for a period of five years.
• DOL can revoke the certification for up to five years after approval.  If revocation is sought, this decision can be challenged and appealed through the Administrative Law Judges at DOL.

Prevailing wage under PERM

PERM requires employers to offer at least 100% of the prevailing wage rate for the position being certified. Prior to filing the PERM application with DOL, the employer must obtain a prevailing wage determination (PWD) from the appropriate State Workforce Agency (SWA) documenting the prevailing wage rate for the position on the PERM application. PWDs will be valid for at least 90 days, and for not more than 365 days, after they are issued. 

The employer may appeal a SWA's PWD to the DOL Certifying Officer (CO). The CO may affirm the PWD, modify the PWD to reflect the employer's alternate wage source, or remand the PWD for further review. Employers may appeal a CO's decision on a PWD to BALCA (Board of Alien Labor Certification Appeals). There is no specified time for processing PWD appeals.

In January 2010, DOL plans to move all prevailing wage issuance from the SWAs to a centralized DOL national office.  At that point, the SWAs will have no longer have a role in the PERM process.

Job requirements under PERM

Generally, PERM specifies that the employer's job requirements on the PERM application must not exceed the Standard Vocation Preparation (SVP) level for the occupation as defined by DOL. PERM specifies that DOL use the Standard Occupational Codes (SOC) to determine the maximum amount of education, experience and training to be required. If the employer's requirements are within the SVP for the occupation, DOL presumes they are normal for the occupation.
Employers can include requirements that exceed the SVP, if the employer can document that such requirements are justified by business necessity. Doing so requires demonstrating that the minimum requirements are bona fide, bear a reasonable relationship to the occupation, and that the requirements are essential to perform the job in a reasonable manner. Employers may include a foreign language requirement if warranted by business necessity, such as conversing with clients.

Employers may not require unique employment experience or skills as a screening requirement for U.S. workers if the beneficiary only gained such skills while working for that employer. The beneficiary can only demonstrate qualifications for a position using experience gained from the sponsoring employer if that experience was gained in a position substantially dissimilar to the position for which certification is sought. PERM defines the "same" employer as having the same Federal Employer Identification Number (FEIN), so experience gained by the beneficiary while working for an overseas affiliate of a U.S. employer would appear to be acceptable.

Recruitment under PERM

PERM requires that the employer complete all of the required recruitment steps during the 180 days prior to filing the application with DOL. DOL requires "professional" positions to complete additional recruitment steps. Generally, a "professional" occupation is one in which completion of at least a bachelor's degree is normally required for entry into the field.  Even if the employer does not require a bachelor's degree on the PERM application, if the occupation normally requires a bachelor's degree, it will be considered a "professional" position and the additional recruitment steps are required, The "mandatory" recruitment steps for all PERM applications must take place at least 30, but no more than 180, days before filing the application with DOL.

Mandatory recruitment steps for all PERM cases

The following three recruitments steps are required for all PERM cases.

1. Published newspaper advertisements. Employers must run advertisements on two different Sundays (i.e., at least one week apart) in the "classifieds" section of a newspaper of general circulation in the area of intended employment. If a professional journal is normally used to recruit for the occupation, the employer may place an advertisement in a professional or trade journal of national circulation, in lieu of one of the two newspaper ads. Advertisements must (1) identify the employer, (2) provide instructions on how applicants may apply for the position, (3) provide enough information about the job opportunity to apprise applicants of the nature of the job opportunity, and (4) indicate the geographic area of employment.
2. Job Order. The employer must place a 30 day job order with the State Workforce Agency serving the area of intended employment. In California, CalJobs is the appropriate venue ( http://www.caljobs.ca.gov/). The start and end dates of the job order must be stated on the PERM application.
3. Notice of filing an application for labor certification. The employer must provide notice to its employees that it is filing an LC application for the job opportunity. If the occupation is unionized, the formal Notice must be provided to the bargaining representative. If there is no bargaining representative, the Notice must be posted at the employer's worksite in a conspicuous location for ten (10) consecutive business days. In addition, the employer must distribute the Notice through "any and all in-house media" normally used by the employer to recruit for similar positions.

Additional recruitment steps for professional occupations

PERM requires that employers sponsoring individuals in professional occupations complete at least three (3) different additional steps from the following list of 10 possible recruitment steps. All three steps must be completed no more than 180 days before the application is filed with DOL. However, only one of the three steps may take place during the 30 day period immediately prior to filing. The list of 10 recruitment steps follow below:

1. Job Fairs
2. Employer's Website
3. External Website Advertising
4. On-Campus Recruiting
5. Trade or professional organizations
6. Private employment firms
7. Employee Referral Program with incentives
8. Campus placement offices
9. Local and ethnic newspapers
10. Radio and television advertisements

Preparing recruitment results

In addition to completing the mandatory recruitment regimen, employers must document the results of the recruitment to demonstrate that the employer was unable to locate any qualified U.S. workers for the offered position. "U.S. worker" is defined as any individual who possesses permanent, unrestricted authorization to work in the United States, and includes U.S. citizens, permanent residents, asylees and refugees.

PERM does not require employers to provide individual recruitment results for each and every applicant to the job. However, PERM does require employers to prepare a summary recruitment report that describes the recruitment conducted, and the numbers of U.S. workers rejected, categorized by the specific lawful reason for rejection. The DOL reserves the right to request résumés of applicants.  DOL has issued audits on PERM cases specifically requesting resumes and documentation of the employer's contact with applicants to the sponsored position.

When considering applicants for the offered position, the employer must consider applicants only against the specified requirements for the job opportunity, such as the minimum educational degree, years of employment experience, specific job-related skills and knowledge (e.g., programming languages). If certain job-related skills could be learned during a "reasonable" period of on-the-job (OTJ) training, candidates lacking those skills must be considered qualified for the job opportunity. If an applicant was disqualified for lacking a skill that may be readily acquired, the employer may be asked to document and explain why this skill could not have been acquired through OTJ training, and prove that the employer does not hire individuals who lack this particular skill. PERM does not consider the minimum educational and experience requirements for the application to be OTJ skills.

The PERM regulations bar the alien beneficiary and the beneficiary's representative from any consideration of applicants to the job opportunity.  The employer's representative is also barred from considering applicants, unless this is a role the representative routinely performs for the employer outside the labor certification context.

Other PERM issues: Layoffs, fraud penalties, and foreign national involvement

The PERM form includes an attestation that asks whether the employer has laid off any employees in the occupation, or in a related occupation, within the past six months. If the employer has laid off workers in the occupation within the past six months, the employer must attest whether it contacted and considered these workers for the job on the PERM application. For some employers, a layoff may mean that a PERM application cannot be filed until six months after the date of the layoff. If the employer files a PERM case indicating that US workers were laid off in the six months prior to filing, the employer is likely to receive an audit requesting additional clarification about the layoff.

DOL has long been concerned about the bona fides of a job opportunity if the sponsored foreign national is a key employee of the employer, is related to the employer, or is so closely involved with the employer that it is unlikely that the sponsored position would be truly "open" to U.S. workers. DOL has added specific disclosures to the PERM application for employers that are closely held corporations, partnerships, or have few employees. Further, if the alien beneficiary is one of 10 or fewer employees, the employer must disclose any family relationship between the employees and the beneficiary.  DOL has issued audit requests on PERM cases that disclose a family relationship to confirm that a bona fide job opportunity exists.

In 2007, DOL amended its regulations to address fraud concerns with the labor certification process.  Under the revised regulations,  DOL has the authority to debar employers, attorneys and agents from filing labor certifications if DOL determines that certain violations have occurred, including sale or barter of an approved labor certification, willful provision of false or inaccurate information in a labor certification, fraud, or a pattern and practice of failure to comply with the terms of a labor certification application. The rule specifies that a debarment action may be brought up to six years after the labor certification at issue was filed, and a party may be debarred from filing labor certifications for up to three years from the date of debarment. An employer who has a pattern of failing to respond to audit letters may be found to be a willful violator, and potentially may be debarred from the PERM program for up to three years. 

Finally, the sponsored foreign national cannot be involved in the recruitment process in any manner. S/he cannot participate in reviewing resumes or interviewing candidates.

PERM costs and fees

An amendment to the PERM regulations in 2007 put restrictions on who can pay for a PERM application.  The regulation requires that the petitioning employer rather than the beneficiary pay the costs associated with filing and obtaining an approved labor certification application, including the payment of attorney's fees when the same attorney represents both the sponsored beneficiary and the employer. The employer is also prohibited from receiving any payment as an incentive or inducement to filing the labor certification application. On a related note, the rule also prohibits the sale, purchase and barter of all labor certification applications.

At present, there is no filing fee to submit a PERM application to DOL.  DOL has indicated that it would like to charge a fee, but they only plan to impose a fee if they can get specific legislation passed that would allow DOL to retain the fees to run the labor certification program.

What happens to PERM Applications after filing?

DOL processes most PERM applications filed electronically within 6-12 months of submittal.  The processing times have increased over time, as DOL assesses labor market availability, and audits more cases to verify that recruitment was correctly completed prior to filing.  DOL has stated that PERM applications submitted by mail are processed more slowly than electronically filed cases, as DOL must first input these into the automated system before any action may be taken.

The initial review and intake of the PERM application is completed by an automated system at DOL. Following this review, cases are then assigned to an analyst for final review.  If the application passes certain validation checks and all parts of the application are complete, the majority of cases will then be certified.  DOL originally estimated that between 10-20% of all PERM cases will be issued audit letters, but recent experience has suggested a higher audit rate of 20-30% of cases may occur. Some of the audit letters will be based on selection factors determined by DOL (targeted audits). Other audit letters will be sent out for quality control purposes (random audits). Generally, the audit letters will be designed to verify the recruitment, wage, and other information the employer has attested to on the application. Under the PERM regulations, employers are required to maintain documentation of unsuccessful recruitment of qualified, willing, available U.S. workers, prevailing wage, and notice for five years from the date of filing.

If a PERM case is denied, the employer may appeal the denial to BALCA or request reconsideration from the Certifying Officer.  PERM appeals may take two years or more to be processed.  DOL has implemented an expedited review queue for certain PERM cases that were denied due to DOL error, but if the denial is not deemed to be DOL error, the appeal is placed in the regular appeal queue to await review.

If the employer does not respond to the audit letter within the 30 day time-limit, the case will be automatically denied. The employer may request one 30 day extension of the due date on the audit letter, but DOL is not required to grant the extension unless "good cause" is shown. After responding to an audit letter, DOL may certify, deny, issue a second audit for more details or clarification, or instruct the employer to complete additional recruitment that will be supervised by DOL. 

Under the PERM regulations, DOL may revoke an approved PERM application at any time after certification. This measure is designed to give DOL the power to revoke applications that may have been approved in error, such as due to a software malfunction, or to revoke applications where DOL later discovers fraud or misrepresentation. If DOL chooses to revoke an approved PERM application, the employer will be given 30 days to respond, and document why the approval should not be revoked. The employer may appeal a revocation to BALCA.

Conclusion

The PERM process is more efficient than the previous system it replaced because it implemented a standard, national program and gives the benefit of consistent national processing.  There are still several open questions about the application of the PERM regulations, as DOL's implementation and interpretation of the regulations is still evolving. The benefit of explicit guidance on what is acceptable recruitment, how recruitment results should be documented, and the consistency of national processing has the potential to make the PERM application process more efficient for employers.  However, DOL's expansion of the "supervised recruitment" option, as well as plans to more closely assess PERM cases for "integrity", suggests that PERM cases may take longer to be processed, and be subject to increasingly strict review at DOL.    

15Nov05

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