DOL Issues Fourth Round of FAQs – June 2005
Posted Jun 10, 2005
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The U.S. Department of Labor (DOL) issued another round of Frequently Asked Questions (FAQs) on June 1, 2005. Previous FAQs were discussed in our May 20, 2005 MurthyBulletin article, DOL Issues Additional FAQs, available on MurthyDotCom.
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Subsidiaries with Different FEINs
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The DOL was asked whether a parent company with a different Federal Employer Identification Number (FEIN) from its subsidiary would be able to create a PERM sub-account for the subsidiary under the parent's PERM account so that the subsidiary can file its own PERM cases from the parent's sub-account. The DOL indicated that this is not possible. Information from the main account automatically feeds into the online ETA Form 9089. This information cannot be changed. Therefore, subsidiaries with separate FEINs will need to create their own primary PERM accounts.
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No Confirmation for Mailed-in Applications
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The DOL indicated that it will not send confirmation of receipt for PERM applications that are mailed into the National Processing Centers. Therefore, employers mailing applications rather than using the online form will need to maintain their own proof that a PERM application was mailed. It is not clear what the implication of this decision will be for persons who may need proof of filing for H1B one-year incremental extensions beyond the six-year limitation. Practically speaking, it may not matter since the PERM case should be adjudicated within a month or two while the proof of the pending PERM must be at least one year earlier to take advantage of H1B extensions after the end of six years on H1B.
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Multiple Job Openings
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The DOL was asked whether, in the event of multiple job openings, the advertisements should indicate "number of positions opened plus job title" (example: 5 attorneys), "job title plural" to show multiple openings (example: attorneys), or "job title, multiple openings" (example: attorneys, multiple openings). The DOL indicated that any of these options potentially could be specific enough to apprise U.S. workers of the available job opportunities.
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Employer Need Not Contact State Job Order Match
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If a computerized state employment system identifies workers who match the job requirements for a job order placed by an employer intending to file a PERM application, the DOL confirmed that the employer does not have to contact everyone from the state job order listed as a match. Instead, the employer must only consider or contact those persons who provide affirmative responses to the employer in the manner that the employer includes in the job order.
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Withdrawal Not Permissible Once Audit Issued
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The DOL stated that a PERM application cannot be withdrawn once it has been selected for an audit. Even if the employer does not wish to continue with the PERM application, the employer must respond to the audit or potentially face consequences for failure to respond.
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Conclusion
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The issuance of this fourth set of FAQs in the span of only a few months, while helpful, is indicative of the many unsettled issues that remain with the PERM program. Fortunately, some of the early problems have been resolved and cases are being approved within the stated time estimates. Therefore, there has been improvement, but PERM is still a new program in its early, transitional phase. Hopefully, PERM will soon result in the efficiencies intended without compromising the reason the labor certification program was created; to provide permanent workers to U.S. employers unable to find the necessary, qualified workers their businesses need in order to maintain our economy.