On Feb 01 2007

Government FAQs Clarify Requirements of PERM System

The labor certification process is a Department of Labor (DOL) administered procedure designed to protect the United States job market while guaranteeing that all essential positions can be filled.

By prescribing a specific method by which employers can test the labor market to determine whether there are any qualified and available U.S. workers for a given position, labor certification prevents displacement of U.S. workers while ensuring the nation’s productivity and competitiveness in the global economy, while. The labor certification is also the first step in the process that extends to foreign nationals the right to live and work in the U.S. based on the lack of available U.S. workers to perform a specified job.

Due to longstanding issues related to delays in processing and lack of uniformity, DOL implemented a new, single-step alien labor certification system (“PERM”) in March 2005 to process applications more efficiently and reduce backlogs. While the standards for granting a permanent labor certification remained substantially the same, the new PERM procedure introduced electronic filing at the National Service Center and a system focused on attestations regarding the employer’s adherence to regulatory requirements. The new PERM system was also designed to significantly reduce paperwork and processing times associated with the labor certification process by eliminating the filing of supporting documentation and instead requiring maintenance of an audit file for five years from the date of filing.

While the PERM system has streamlined the filing for permanent labor certifications in many respects, confusion as to the fulfillment of requirements under the new system has lead to numerous open-ended issues. DOL has responded to these pervasive questions through the periodic communication of FAQs, which have become the definitive, and in most cases sole, guidance for practitioners in compliance with pertinent PERM requirements and proper maintenance of audit files. Essentially, these FAQs serve as the primary device for regulatory compliance and their authority as de facto regulations continues to emerge. As we approach the two year anniversary of the implementation of PERM, it appears that DOL FAQs will remain the only source of clarification provided by DOL.

PERM FAQs focus on the two primary aspects of the labor certification process: (1) the proper methods for completing the Form ETA-9089, the electronically-filed document that contains all relevant information relating to the employer and the proposed position, and (2) the fulfillment of recruitment requirements and documentation in the audit file.

Most recently, DOL issued PERM FAQs that address issues related to the communication of alien experience that have arisen due to the fact Form ETA-9089 requests information about the proposed position in several different places, with variances in the formulation of these requests. In the most recent round of FAQs, DOL clarifies issues that arise due to the fact that not only must employers indicate that training is required for the proposed job and attest that the alien beneficiary meets the requirements, they are also required to note on Form ETA-9089 “any other experience that qualifies the alien for the job opportunity for which the employer is seeking certification.”

Specifically, the FAQ discusses representations and descriptions of training in Sections H, J, and K of Form ETA-9089, and notes that all training should be listed in the “Alien Work Experience” section of the form (Section K), regardless of whether the alien gained the experience in a training program or through an actual full-time job in the field. This means that employers should not only mark “yes” on the form in response to the question of whether the alien has completed the training required for the requested job opportunity, they should also enumerate the training experience in the section on Alien Work Experience that qualifies them, even if the training was acquired in a non-paid position. The FAQ also provides directions regarding describing the training position and the source of the training in the context of the Alien Work Experience section.

In addition to providing clarification relating to descriptions of alien experience, the latest PERM FAQs also clarify the establishment of “timelines” and “time periods” for recruitment. The FAQ indicates that for purposes of timelines, which verify the number of days prior to or after an event such as the placement of an advertisement, the day of the event is not counted for purposes of establishing the timeline. Instead, the day after the event is the first day for purposes of the timeline. Conversely, for time periods, which verify the number of days an activity took place such as the posting of the job order, the start date and the last day are included in the computation. The FAQ recommends carrying out the two calculations (timeline and time period) separately, in order to avoid confusion associated with satisfying requirements that refer to timelines and time periods.

Finally, the latest FAQs provide clarification regarding the type of advertising that is acceptable to satisfy the requirements for positions as college and university professors under “special handling” procedures. The FAQ states that for such positions, employers may not use electronic journals as an alternative to one of the mandatory Sunday advertisements required for all professional positions. The FAQ does note that when employers opt to use professional or trade organizations as one of the additional recruitment steps, which supplement the required Sunday advertisements, advertisements in electronic journals are acceptable.

Despite the fact that the PERM system is almost two years old, employers still face a variety of challenges in deciphering recruitment requirements and proper methods to complete Form ETA-9089. As a result, experienced counsel remains of the utmost importance in complying with the regulations as they are communicated in FAQs, and in avoiding administrative delays and potential audits.

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The Legal Intelligencer
February 2007