PERM---New Labor Certification Procedures
Jan 19th 2005, 3:03 am
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PERM---New Labor Certification Procedures
The DOL finally published the long-awaited PERM regulations. The new procedures take effect on March 28, 2005. After that date, RIR filings will no longer be accepted.
Below please find an overview of the new PERM procedures.
Regards,
Andrew M. Wilson, Esq.
Serotte, reich & Wilson, LLP
[email protected]
www.srwlawyers.com
Immigration Law
Looking Forward—PERM
The Department of Labor has published regulations that will significantly change the labor certification process when they take effect on March 28, 2005. After this date, there will be no more filing of traditional labor certification applications or Reduction in Recruitment (RIR) applications. The new Program Electronic Review Management (PERM) system will implement an automated attestation application like the Labor Condition Application (LCA) for H-1B visa petitions that will require extensive attestations of prior recruitment, prevailing wage and non-displacement of US workers. The PERM program will also impose additional restrictive requirements for the labor certification process, but it is anticipated that the DOL will have a processing time of 45-60 days for most filings.
New Filing Procedure
PERM requires new filing procedures that are significantly different than RIR and traditional filings. The actual filing will consist of a 10 page form—ETA 9089. The filing can be accomplished electronically or by mail. The focus of the new PERM program and procedures is to streamline and expedite processing of applications.
Prevailing Wage
Unlike current procedures, employers will be required to obtain a prevailing wage determination from the State Workforce Agency (SWA) before filing the application with the DOL. The SWA will, as they are charged to do now, evaluate the particulars of the employer’s job offer, such as the job duties and requirements for the position and the geographic area in which the job is located. In order to alleviate some of the workload and backlog at the SWA, they will no longer be the filing point for labor certification applications and they will not be the source of recruitment and referral of U.S. workers as they are now in the traditional filing system.
Another change from current procedures is a four (4) level prevailing wage system rather than only two (2). Apparently dissatisfied with the Department of Labor’s rigid OES two level wage survey, Congress has mandated that DOL must provide at least four levels of wages commensurate with experience, education, and level of supervision. To the extent that the DOL does not do so, employers may convert the two tier DOL survey into a four level survey through a mathematical formula specified in the legislation. This provision will apply to permanent labor certifications as well as H-1B’s. In addition, employers may continue to use private surveys.
Importantly, the new law provides a defense to an employer who is charged with not paying the prevailing wage if the employer can establish that the manner in which the prevailing wage was calculated was consistent with “recognized industry standards and practices.� This may open up the availability of private surveys regularly used by employers that do not technically meet the relevant provisions in the DOL regulations.
The expanded flexibility granted employers in determining prevailing wages are offset by a provision mandating that the employer pay 100% of the prevailing wage determined by the survey used, rather than 95%, as permitted in the past.
Four Level Conversion Formula
The government must either provide a 4-wage level governmental survey, or a formula must be used to calculate the prevailing wage if only a 2-wage level governmental survey is available. The formulas to convert a 2-wage level governmental survey into a 4-wage level governmental survey are:
If only two levels are currently provided, two new levels may be created by dividing by 3 the difference between the two levels offered, and then adding the quotient obtained to the first level, and then by subtracting that same quotient from the second level.
New Level 2 :
((Current Level 2 minus Level 1) divided by 3) plus Level 1
New Level 3 :
Current Level 2 minus ((current Level 2 minus Level 1) divided by 3)
For example: The U.S. Department of Labor (DOL) Online Wage Library currently indicates that the prevailing wage for a Computer Programmer (OES Code 15-1021) in Baltimore County, Maryland, is $32,594 for Level 1 and $67,850 for Level 2. Since this is a 2-wage level survey, the formula must be applied. To obtain new Levels 2 and 3, the following calculations would have to be made:
New Level 2 :
(($67,850 minus $32,594) divided by 3) plus $32,594 equals $44,346
New Level 3 :
$67,850 minus (($67,850 minus $32,594) divided by 3) equals $56,098
Therefore, after the calculations, the 4-level determination for a Computer Programmer in Baltimore County, Maryland, becomes: Level 1, $32,594; Level 2, $44,346; Level 3, $56,098; and Level 4, $67,850.
How to Determine the Various Levels
The law does not explain how to determine the level that should apply to an individual. At this point, there is no guidance on who is a new level 2 or who is a new level 3 etc. This should be addressed as the Department of Labor implements regulations for this provision of the law.
Lastly, under the new PERM regulations, the employer must now pay 100% of the prevailing wage. There is no more flexibility of paying at least 95% of the prevailing wage as is the case under current regulations.
Advertisement Requirements and Other Forms of Recruitment
As is the case with RIR filings, PERM requires employers to conduct recruitment before filing the labor certification application. Employers are required to place a job order and two Sunday newspaper advertisements. The job order must be placed for a period of 30 days. The start and end date must be listed by the employer on Form ETA 9089. The Sunday newspaper advertisements must be published in a newspaper of general circulation in the area of intended employment. They must be printed between 180 and 30 days before filing and should include the name of the employer, the geographic area of employment if the resume is sent to another location, a description of the position offered, and an indication of where applicants can send their resumes or applications. Unlike current procedures under RIR filings, which required a more spread out recruitment campaign, the Sunday advertisements may be published in consecutive Sunday editions.
There are two exceptions to placing advertisements in the Sunday edition of the newspaper. The first is the “rural exception� for jobs located areas where there is not a Sunday edition of the newspaper. Advertisements in these regions must be placed in the daily edition with the widest circulation. This exception does not apply to positions in suburban areas. The newspaper for a metropolitan region must be used for such positions. The second exception applies to positions that require experience and an advanced degree. For these professional positions, the employer may substitute the second Sunday advertisement with an advertisement in a professional journal.
If the labor certification application is for a professional occupation, the employer must conduct three additional recruitment steps that the employer may choose from a list of alternative recruitment steps. A professional occupation is defined as one that requires a bachelor’s degree or higher. In order to meet the additional recruitment steps for a professional position, the employer must embark on at least three of these recruiting options—(1) Job fairs; (2) the Employer's Web site; (3) Job search web site other than the employer's; (4) On-campus recruiting; (5) professional or trade organizations, (i.e. placing an advertisement in their newsletter or journal); (6) Private employment firms that conduct recruitment; (7) an employee referral program that provides incentives; (8) Campus placement offices; (9) advertisement in local and ethnic newspapers; (10) radio and television advertisements, and (11) web page advertisements that are posted in conjunction with one of the mandatory print advertisements. All three additional steps must take place no more than six months before filing the application. One of the three steps can take place within thirty days of filing.
Filing the Application
As discussed above, SWA’s will be responsible for prevailing wage determinations, but they will no longer receive or process the actual labor certification application. In addition, the employer will not be required to submit any documentation with the labor certification application except the new ETA 9089. However, the employer will be required to maintain the supporting documentation that is normally submitted now with an RIR filing. Maintaining the supporting documents is important though, and employers will be required to provide the supporting documentation in the event its labor certification application is selected for audit.
The final PERM rule allows employers to submit the ETA 9089 either electronically or by mail directly to an ETA application processing center. To accommodate electronic filings, a complete application will consist of just the ETA 9089. If the application has not been selected for an audit, electronic submission and certification requires the ETA 9089 to be printed out and signed by the employer immediately after the DOL approves the labor certification. A copy of the signed form must be maintained in the employer’s files, and the original signed ETA 9089 must be submitted to support the I-140 petition (second stage of the green card process). If the application is not selected for an audit, the DOL will certify it within 45 and 60 days from filing.
Recruitment Report
The employer must prepare a recruitment report for its internal files after the recruitment process and before submitting Form ETA 9089. The report must document recruitment steps undertaken and the results achieved. It must include the number of hires and if applicable, the number of US workers rejected, summarizing the lawful job-related reasons for their rejections. In addition, the recruitment report must be signed by the employer, and the employer must retain all supporting documents for five years from the date of filing.
PERM does not require the employer to identify the individual US workers who applied for the position. After reviewing the report, however, a Certifying Officer may request to review the resumes or applications of the rejected US workers. These resumes or applications should be sorted according to the reasons they were rejected.
Audits and Supervised Recruitment
Some applications will be selected for audit by the DOL. These will include problematic applications that raise a red flag in the computerized system, as well as random audits. If an application is selected for audit, the employer will be notified and required to submit documentation to verify the information attested to on the ETA 9089.
If the audit documentation is complete and consistent with the employer’s statements in the ETA 9089, the application should be certified. If the audit documentation is incomplete and lacking required information, and/or is inconsistent with the employer’s claims in the ETA 9089, the application will be denied. Notification of the denial with the reasons for denial will be forwarded to the employer.
Under PERM, the Certifying Officer may also require a supervised recruitment for the job opportunity. A supervised recruitment will arise when the Certifying Officer is not satisfied with the employer’s test of the labor market. The supervised recruitment that may be required is similar to the current regulations for recruitment under a traditional filing—placement of advertisements in conjunction with a 30-day job order. The recruitment, however, will be supervised by the Certifying Officer rather than the SWA. At the completion of the supervised recruitment, the employer will be required to document a recruitment report outlining the results and job-related reasons for mot hiring applicants.
Avoiding Labor Certifications
If possible, an individual should investigate whether she qualifies for one of the immigrant visa categories that do not require an approved labor certification application. These are categories where the individual does not need to test the U.S. labor market and show that there were not any qualified U.S. workers that applied. If no labor certification is required, the green card process entails only the last two stages outlined above. Not only is this beneficial because it saves time and money (advertising costs), it also takes out some of the uncertainty of the process.
Among the employment-based categories, there are three common options available that do not require an approved labor certification application. Rather than testing the labor market and showing that no qualified U.S. workers applied for the position, the individual needs to be at the top of her field or a transferring manager/executive of a multi-national corporation.
Below please find an overview of the new PERM procedures.
Regards,
Andrew M. Wilson, Esq.
Serotte, reich & Wilson, LLP
[email protected]
www.srwlawyers.com
Immigration Law
Looking Forward—PERM
The Department of Labor has published regulations that will significantly change the labor certification process when they take effect on March 28, 2005. After this date, there will be no more filing of traditional labor certification applications or Reduction in Recruitment (RIR) applications. The new Program Electronic Review Management (PERM) system will implement an automated attestation application like the Labor Condition Application (LCA) for H-1B visa petitions that will require extensive attestations of prior recruitment, prevailing wage and non-displacement of US workers. The PERM program will also impose additional restrictive requirements for the labor certification process, but it is anticipated that the DOL will have a processing time of 45-60 days for most filings.
New Filing Procedure
PERM requires new filing procedures that are significantly different than RIR and traditional filings. The actual filing will consist of a 10 page form—ETA 9089. The filing can be accomplished electronically or by mail. The focus of the new PERM program and procedures is to streamline and expedite processing of applications.
Prevailing Wage
Unlike current procedures, employers will be required to obtain a prevailing wage determination from the State Workforce Agency (SWA) before filing the application with the DOL. The SWA will, as they are charged to do now, evaluate the particulars of the employer’s job offer, such as the job duties and requirements for the position and the geographic area in which the job is located. In order to alleviate some of the workload and backlog at the SWA, they will no longer be the filing point for labor certification applications and they will not be the source of recruitment and referral of U.S. workers as they are now in the traditional filing system.
Another change from current procedures is a four (4) level prevailing wage system rather than only two (2). Apparently dissatisfied with the Department of Labor’s rigid OES two level wage survey, Congress has mandated that DOL must provide at least four levels of wages commensurate with experience, education, and level of supervision. To the extent that the DOL does not do so, employers may convert the two tier DOL survey into a four level survey through a mathematical formula specified in the legislation. This provision will apply to permanent labor certifications as well as H-1B’s. In addition, employers may continue to use private surveys.
Importantly, the new law provides a defense to an employer who is charged with not paying the prevailing wage if the employer can establish that the manner in which the prevailing wage was calculated was consistent with “recognized industry standards and practices.� This may open up the availability of private surveys regularly used by employers that do not technically meet the relevant provisions in the DOL regulations.
The expanded flexibility granted employers in determining prevailing wages are offset by a provision mandating that the employer pay 100% of the prevailing wage determined by the survey used, rather than 95%, as permitted in the past.
Four Level Conversion Formula
The government must either provide a 4-wage level governmental survey, or a formula must be used to calculate the prevailing wage if only a 2-wage level governmental survey is available. The formulas to convert a 2-wage level governmental survey into a 4-wage level governmental survey are:
If only two levels are currently provided, two new levels may be created by dividing by 3 the difference between the two levels offered, and then adding the quotient obtained to the first level, and then by subtracting that same quotient from the second level.
New Level 2 :
((Current Level 2 minus Level 1) divided by 3) plus Level 1
New Level 3 :
Current Level 2 minus ((current Level 2 minus Level 1) divided by 3)
For example: The U.S. Department of Labor (DOL) Online Wage Library currently indicates that the prevailing wage for a Computer Programmer (OES Code 15-1021) in Baltimore County, Maryland, is $32,594 for Level 1 and $67,850 for Level 2. Since this is a 2-wage level survey, the formula must be applied. To obtain new Levels 2 and 3, the following calculations would have to be made:
New Level 2 :
(($67,850 minus $32,594) divided by 3) plus $32,594 equals $44,346
New Level 3 :
$67,850 minus (($67,850 minus $32,594) divided by 3) equals $56,098
Therefore, after the calculations, the 4-level determination for a Computer Programmer in Baltimore County, Maryland, becomes: Level 1, $32,594; Level 2, $44,346; Level 3, $56,098; and Level 4, $67,850.
How to Determine the Various Levels
The law does not explain how to determine the level that should apply to an individual. At this point, there is no guidance on who is a new level 2 or who is a new level 3 etc. This should be addressed as the Department of Labor implements regulations for this provision of the law.
Lastly, under the new PERM regulations, the employer must now pay 100% of the prevailing wage. There is no more flexibility of paying at least 95% of the prevailing wage as is the case under current regulations.
Advertisement Requirements and Other Forms of Recruitment
As is the case with RIR filings, PERM requires employers to conduct recruitment before filing the labor certification application. Employers are required to place a job order and two Sunday newspaper advertisements. The job order must be placed for a period of 30 days. The start and end date must be listed by the employer on Form ETA 9089. The Sunday newspaper advertisements must be published in a newspaper of general circulation in the area of intended employment. They must be printed between 180 and 30 days before filing and should include the name of the employer, the geographic area of employment if the resume is sent to another location, a description of the position offered, and an indication of where applicants can send their resumes or applications. Unlike current procedures under RIR filings, which required a more spread out recruitment campaign, the Sunday advertisements may be published in consecutive Sunday editions.
There are two exceptions to placing advertisements in the Sunday edition of the newspaper. The first is the “rural exception� for jobs located areas where there is not a Sunday edition of the newspaper. Advertisements in these regions must be placed in the daily edition with the widest circulation. This exception does not apply to positions in suburban areas. The newspaper for a metropolitan region must be used for such positions. The second exception applies to positions that require experience and an advanced degree. For these professional positions, the employer may substitute the second Sunday advertisement with an advertisement in a professional journal.
If the labor certification application is for a professional occupation, the employer must conduct three additional recruitment steps that the employer may choose from a list of alternative recruitment steps. A professional occupation is defined as one that requires a bachelor’s degree or higher. In order to meet the additional recruitment steps for a professional position, the employer must embark on at least three of these recruiting options—(1) Job fairs; (2) the Employer's Web site; (3) Job search web site other than the employer's; (4) On-campus recruiting; (5) professional or trade organizations, (i.e. placing an advertisement in their newsletter or journal); (6) Private employment firms that conduct recruitment; (7) an employee referral program that provides incentives; (8) Campus placement offices; (9) advertisement in local and ethnic newspapers; (10) radio and television advertisements, and (11) web page advertisements that are posted in conjunction with one of the mandatory print advertisements. All three additional steps must take place no more than six months before filing the application. One of the three steps can take place within thirty days of filing.
Filing the Application
As discussed above, SWA’s will be responsible for prevailing wage determinations, but they will no longer receive or process the actual labor certification application. In addition, the employer will not be required to submit any documentation with the labor certification application except the new ETA 9089. However, the employer will be required to maintain the supporting documentation that is normally submitted now with an RIR filing. Maintaining the supporting documents is important though, and employers will be required to provide the supporting documentation in the event its labor certification application is selected for audit.
The final PERM rule allows employers to submit the ETA 9089 either electronically or by mail directly to an ETA application processing center. To accommodate electronic filings, a complete application will consist of just the ETA 9089. If the application has not been selected for an audit, electronic submission and certification requires the ETA 9089 to be printed out and signed by the employer immediately after the DOL approves the labor certification. A copy of the signed form must be maintained in the employer’s files, and the original signed ETA 9089 must be submitted to support the I-140 petition (second stage of the green card process). If the application is not selected for an audit, the DOL will certify it within 45 and 60 days from filing.
Recruitment Report
The employer must prepare a recruitment report for its internal files after the recruitment process and before submitting Form ETA 9089. The report must document recruitment steps undertaken and the results achieved. It must include the number of hires and if applicable, the number of US workers rejected, summarizing the lawful job-related reasons for their rejections. In addition, the recruitment report must be signed by the employer, and the employer must retain all supporting documents for five years from the date of filing.
PERM does not require the employer to identify the individual US workers who applied for the position. After reviewing the report, however, a Certifying Officer may request to review the resumes or applications of the rejected US workers. These resumes or applications should be sorted according to the reasons they were rejected.
Audits and Supervised Recruitment
Some applications will be selected for audit by the DOL. These will include problematic applications that raise a red flag in the computerized system, as well as random audits. If an application is selected for audit, the employer will be notified and required to submit documentation to verify the information attested to on the ETA 9089.
If the audit documentation is complete and consistent with the employer’s statements in the ETA 9089, the application should be certified. If the audit documentation is incomplete and lacking required information, and/or is inconsistent with the employer’s claims in the ETA 9089, the application will be denied. Notification of the denial with the reasons for denial will be forwarded to the employer.
Under PERM, the Certifying Officer may also require a supervised recruitment for the job opportunity. A supervised recruitment will arise when the Certifying Officer is not satisfied with the employer’s test of the labor market. The supervised recruitment that may be required is similar to the current regulations for recruitment under a traditional filing—placement of advertisements in conjunction with a 30-day job order. The recruitment, however, will be supervised by the Certifying Officer rather than the SWA. At the completion of the supervised recruitment, the employer will be required to document a recruitment report outlining the results and job-related reasons for mot hiring applicants.
Avoiding Labor Certifications
If possible, an individual should investigate whether she qualifies for one of the immigrant visa categories that do not require an approved labor certification application. These are categories where the individual does not need to test the U.S. labor market and show that there were not any qualified U.S. workers that applied. If no labor certification is required, the green card process entails only the last two stages outlined above. Not only is this beneficial because it saves time and money (advertising costs), it also takes out some of the uncertainty of the process.
Among the employment-based categories, there are three common options available that do not require an approved labor certification application. Rather than testing the labor market and showing that no qualified U.S. workers applied for the position, the individual needs to be at the top of her field or a transferring manager/executive of a multi-national corporation.
