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

2. 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

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

4. 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

5. 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

6. 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

7. 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

8. Basic Permanent Labor Certification Process

9. 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current application must be withdrawn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

10. 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

11. 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

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

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

14. 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

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

16. 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)

17. Specific Occupations

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

19. 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

20. Permanent Labor Certification Case Processing

21. Bona Fides
Employer existence
Sponsorship
Publicly available databases

22. 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

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

24. 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

25. 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

26. 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

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

28. 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

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

30. Prevailing Wage Determination Process for Permanent Labor Certification Purposes

31. 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

32. 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

33. 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

34. Application for Permanent Employment Certification

35. Form ETA 9089 (pg. 1)

36. Form ETA 9089 (pg. 2)

37. Form ETA 9089 (pg. 3)

38. Form ETA 9089 (pg. 4)

39. Form ETA 9089 (pg. 5)

40. Form ETA 9089 (pg. 6)

41. Form ETA 9089 (pg. 7)

42. Form ETA 9089 (pg. 8)

43. Form ETA 9089 (pg. 9)

44. Form ETA 9089 (pg. 10)

45. 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 or
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