Re-engineered Permanent Labor Certification Program (PERM) Speaker Notes Effective: March 28, 2005 eta Employment And Training Administration United States Department Of Labor

History and Background A labor certification is required prior to petitioning USCIS for permanent residence (“green card”) for certain employment-based immigrant visas DOL certifies: not sufficient U.S. workers no adverse effect on U.S. workers Application certified or denied by DOL

History and Background (continued) Previous process criticized as: complex time consuming resource intensive duplicative New system streamlines process

History and Background (continued) NPRM on May 6, 2002 Approximately 200 comments Approximately 1,100 pages of comments Final regulation responsive to public comments Final rule published on December 27, 2004 Regulation effective March 28, 2005

Highlights of Re-engineered Program Employers must conduct recruitment before filing applications SWAs provide prevailing wage determinations, but will no longer accept or process permanent applications once the regulation is effective Employers have the option of web-based filing Must offer at least 100% of the prevailing wage Employer retains supporting documentation for audit purposes for five (5) years Business necessity included in final rule

General Instructions Representation by agents or attorneys allowed Filing options (ETA Form 9089): mail-in web-based No facsimile (fax) applications Pin/Password process for e-filing

General Instructions (continued) Applications will be processed in either the Chicago or Atlanta National Processing Center – based upon work state Incomplete applications will not be accepted or, in the case of paper applications, will be denied

Basic Permanent Labor Certification Process

Filing Date & Re-filing of Pending Cases Date stamping of applications accepted for processing Re-filing applications under the final rule must meet final rule recruitment requirements must be identical application current application must be withdrawn re-file is considered a withdrawal withdrawal allowed prior to re-filing, must re-file within 210 days re-filed applications may take longer to process than other ETA Form 9089s

Pre-filing Recruitment Separate Professional and Nonprofessional occupation recruitment requirements Professional occupations are listed in Appendix A to the Preamble All occupations not listed in Appendix A to the Preamble are considered non-professional for purposes of this recruitment

Pre-filing Recruitment (continued) Placement of job order with SWA Two Sunday newspaper advertisements – professional journal optional in certain cases Additional recruitment steps for professional occupations

Contents of Advertisements Employer name Wage rate (optional) Description of vacancy and geographic area of employment

Job Opportunity Business necessity available No foreign language requirement, unless justified by business necessity Combination occupations permitted when justified Alternative experience requirements permitted

Job Opportunity (cont.) Job requirements must represent employer’s actual minimum requirements Alien’s background must satisfy actual minimum requirements Alien’s qualifying experience cannot be gained with the employer, except in limited circumstances Definition of “employer” determined by EIN

Other Requirements Notification to laid-off U.S. workers by the employer applicant Prohibition against alien influence and control over job opportunity

Recruitment Report Recruitment steps undertaken Results achieved and lawful reasons for rejection of U.S. workers, as applicable Maintain resumes/application materials for documentation/audit purposes (5 years)

Specific Occupations

Schedule A Occupations Physical therapists Professional nurses Aliens of exceptional ability in the sciences or arts Performing artists of exceptional ability – previously special handling

Other Occupations Labor certification requirements for sheepherders – direct to USCIS Optional recruitment and documentation for college and university teachers – alternative recruitment Live-in household domestic service workers – additional documentation required

Permanent Labor Certification Case Processing

Bona Fides Employer existence Sponsorship Publicly available databases

Audit Letters Based on: review of application selection for quality control purposes Required documentation based upon the particulars of the application – some will be requested by the audit letter 30-day response time for submittal of application documentation – one extension at COs discretion CO may ask for additional information Failure to comply, application denied and future applications audited Application may be denied after review of supplied documents

Supervised Recruitment Directed by Certifying Officer Advertising requirements for the job opportunity Detailed written recruitment report 30-day response time

Labor Certification Determinations by Certifying Officer Application either certified or denied Final notification to employers in writing Possibility of supervised recruitment up to two years Employer request for reconsideration or review within 30 days

BALCA Review of Denials Request by employer to denying CO by certified mail Assembly of appeal file by certifying officer sent to BALCA copy to employer

Consideration by and Decisions of BALCA Briefs and Statements of Position within 30 days Notification of decision Hearings – notification and procedure No remands Review on the record

Substitutions and Invalidations of Labor Certifications After issuance, subject to invalidation for fraud or willful misrepresentation Substitution of alien beneficiaries Issuance of duplicate certifications

Fraud or Willful Misrepresentation in Certification Applications If possible fraud discovered before certification, referred to USCIS, DOL Inspector General, etc. If subject to judicial process, application processing halted If fraud found, application invalidated and processing terminated 90-day notification period

Revocation of Approved Labor Certifications Basis - Certifying Officer finds certification was not justified Employer receives notice of intent to revoke

Prevailing Wage Determination Process for Permanent Labor Certification Purposes

Process for Obtaining a Prevailing Wage Determination Request prevailing wage determination from SWA serving area of intended employment on their form Validity period 90 days to 1 year from determination date Employers must file their applications or begin recruitment within the validity period specified by the SWA

Process for Obtaining a Prevailing Wage (continued) SWA determination sources: CBA when appropriate employer provided survey must meet all requirements listed in the regulations median acceptable if no mean DBA and SCA may be utilized by employers – no longer mandatory OES Guidance forthcoming on 4 wage levels The SWA must consider one supplemental submission concerning the wage determination

Prevailing Wage Review Request from employer within 30 days of the determination by the SWA CO reviews determination based on the record Employer may request BALCA review of CO determination within 30 days of the date of the decision

Application for Permanent Employment Certification

Form ETA 9089 (pg. 1)

Form ETA 9089 (pg. 2)

Form ETA 9089 (pg. 3)

Form ETA 9089 (pg. 4)

Form ETA 9089 (pg. 5)

Form ETA 9089 (pg. 6)

Form ETA 9089 (pg. 7)

Form ETA 9089 (pg. 8)

Form ETA 9089 (pg. 9)

Form ETA 9089 (pg. 10)

Address and Contact Information Employment and Training Administration Office of National Programs Division of Foreign Labor Certification 200 Constitution Ave., NW C-4312 Washington, DC 20210 DFLC website http://www.ows.doleta.gov/foreign/ or http://www.workforcesecurity.doleta.gov/foreign/ Send questions to PERM.DFLC@dol.gov