DOL Transition Watch : Clarity on PERM Issues
Posted Mar 11, 2005
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The U.S. Department of Labor (DOL) issued Frequently Asked Questions (FAQs) regarding the new PERM system on March 8, 2005. We have provided a summary of some of the more relevant issues below for our MurthyDotCom and MurthyBulletin readers.
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Employer and Employee Must Sign the Application  The DOL confirmed that, in order to be valid, applications filed electronically must be signed immediately by the employer, beneficiary, and preparer, if applicable, once certified. The DOL has not defined the term "immediately" and it is difficult to require the parties to sign immediately, especially if they are in different work locations. Further, the DOL stipulated that the employer must provide a signed copy of the application if a Certifying Officer requests it during an audit.
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New Prevailing Wage  The DOL indicated that, when determining whether a PERM filing is identical to a pre-PERM filing, for purposes of retaining the priority date the cases can be considered identical even if the prevailing wage in the PERM filing differs from the prevailing wage in the pre-PERM filing. For a job to be identical, the employer, including employer address, beneficiary, job title, job location, job requirements, and job description all must be identical.
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Ability to Hire Beneficiary  The DOL clarified that the ability to hire a beneficiary involves more than having the funds to pay the prevailing wage. The DOL included an example in which the employer is building a new restaurant. The employer in that case must be able to show that the restaurant will be open and ready to take the new employee at the time the green card is approved.
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America's Job Bank  America's Job Bank raised two primary questions. The first was whether an employer had to place a job order with the state if the employer knew that the state only posted its job orders on America's Job Bank. The DOL replied that the employer must still submit the job order to the state. The second question was whether America's Job Bank could count as website recruitment under the recruitment options for professionals. The DOL indicated that it could be used for that purpose, if the state does not use America's Job Bank to place its job orders.
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Sunday Newspaper Advertisements  The DOL confirmed that the Sunday advertisements may run on consecutive Sundays.
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Recruitment Prior to Prevailing Wage Determination  Recruitment for a position may begin before the prevailing wage determination is received from the State Workforce Agency (SWA). It is important for employers to keep in mind, however, that the employer cannot offer a wage lower than the prevailing wage determination to any qualified U.S. workers who apply for the position.
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Prevailing Wage Determinations Issued before March 8, 2005  The DOL will permit employers to use prevailing wage determinations issued prior to March 8, 2005, if the source for the prevailing wage was not the wage component of the Occupational Employment Statistics (OES).
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100% of Prevailing Wage Rate Must Be Offered as of March 8, 2005  The 100% prevailing wage rate requirement applies to all cases as of March 8, 2005, including the permanent labor certifications filed from March 8 to March 27, 2005 under the pre-PERM system.
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Prevailing Wage Determination May Be Reused  The DOL indicated that a prevailing wage determination may be used for multiple cases during the determination's validity period, as long as the prevailing wage is for the same occupation and skill level, the same wage source is applicable, and the job is in the same area of intended employment.
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Validity of Prevailing Wage Determination  The SWAs will issue a validity period of between 90 days and one year. To use an SWA prevailing wage determination, the employer must either file the case or initiate recruitment for the case during the validity period granted by the SWA.
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Job Duties Exceeding Normal Job Requirements  The DOL directed employers to look at the O*Net job summaries to assess whether any job requirements exceed the norm for a particular job. There is an attestation on the PERM application that the employer must complete regarding any additional job requirements beyond those considered normal for the occupation. If it is indicated that there are such requirements, the employer should be prepared to show the business necessity of these job requirements should there be an audit. If the employer indicates that there are no additional job requirements, but the Certifying Officer finds that there were additional job requirements beyond the normal requirements, the case will be denied and the employer will not have the opportunity to show business necessity.
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The parties should understand that labor certifications may be revoked if it is found later that they should not have been granted. It is particularly important to answer all questions correctly, therefore. Should the DOL audit a case and find that this question was initially answered incorrectly, the DOL may be prompted to review all prior labor certification approvals for that employer to determine the bona fides of other cases.
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The FAQs are helpful in providing some guidance before filing PERM cases. Only time will tell how the system is working for all concerned.