Sindell Law Offices E-Min Newsletter BREAKING NEWS - English Article #5
FINALLY and HERE IT COMES---
PERM has arrived.
Three years after the Department of Labor announced the PERM program, they have finally published regulations and PERM is set to take effect on March 28, 2005.
The PERM regulations are 322 pages and they are extremely complex. They radically change the entire labor certification process as it has been known for the last 30 years. To reduce 322 pages to this article is a difficult task but I would like to give my readers a highlight of the program, both the good and the bad and follow up with further articles as the program is implemented.
The current labor certification regulation (RIR and Regular) will be entirely replaced by the new PERM regulation on March 28, 2005. This means that ALL labor certifications filed on or after March 28, 2005 will be processed under PERM. All labor certifications filed prior to that date will be processed under current regulations.
THE GOOD PART
DOL is promising a turn around time for labor certifications in about 60 days, for applications which are not audited.
There is now a window of opportunity for people to use PERM to obtain permanent residence. It is this writer's opinion that there is a limited time to obtain the benefit of PERM. In the past month, the immigrant visa numbers have retrogressed for Indian, Chinese, and Philippine Nationals. As PERM is implemented and more people obtain quick labor certifications, they will be able to move on to the I-140 processing and Immigrant Numbers will retrogress in the EB-3, skilled worker or professional category. What this means is that while you may get a quick labor certification, you may have to still wait the same 2-3 years for immigrant processing because there will not be enough numbers for immigrants. I do believe that this will take between 6 months and a year to happen, so there is definitely a small window of opportunity for those who are considering permanent residence in the United States. In addition, if the position falls in the EB-2 category, or advanced degree professional, the numbers should be available, so those people will most definitely be able to take full advantage of PERM on a long term basis.
THE BAD PART
PERM is very complicated and requires meticulous preparation and a thorough understanding of the rules in order to avoid problems in the future. PERM works kind of like taxes in the United States. When you file taxes in the U.S., you basically declare how much money you made, and your expenses. You don’t usually submit much proof, unless the IRS audits you. PERM works similarly. One can file a labor certification by merely making attestations on a form and submitting it to the labor department. The labor department can then automatically certify it without requesting documentation, or it can send out an audit letter. It is my opinion, that there will be companies who will cut corners because they may get away with merely checking a box. Although the IRS may audit less than 1% of all returns, the DOL will probably audit a good 25%. If a company is audited, and they don't respond within the 30 day period allowed to respond or the company doesn't have the appropriate paper work in order, this may trigger a further audit into other labor certifications and may also create a situation where the employer cannot use the PERM program for a two year period and must undergo supervised recruitment, which is very tedious and time consuming, if the company applies for labor certification for an alien during that time. Therefore, it is imperative that the company be vigilant regarding documentation of the labor certification and that it have everything in order in anticipation of the audit.
THE PROCEDURE
I will go into great detail below regarding new rules and procedures, but in summary, here it is.
The first thing to do in putting together a PERM application is to obtain a Prevailing Wage Determination from the SWA (State Workforce Agency) located in the State where the job offer is. Once the determination is obtained, the company must place a job order with the State Agency for the job, and place 2 Sunday advertisements in an appropriate newspaper. All of this has to be done at least 30 days prior to submitting the labor certification application. If the job is a professional job, there are two more steps the employer must take and I will discuss these below as well. Once the recruitment is completed, a recruitment letter must be created explaining specific job related reasons for rejecting US workers and other criteria. Once everything is put together, the application can be filed electronically on the DOL website. The DOL is saying that they expect to respond to a filing within 45-60 days of receiving the application electronically. If they certify, the certification will be sent by mail. If the DOL doesn’t certify, they will send out an audit letter requesting additional information, to which the company will have 30 days to respond.
THE FIRST STEP
The Prevailing Wage Determination
As before, the applicant must be paid the prevailing wage for the position in question. Until now, the employer could pay 95% of the prevailing wage for the position. Under PERM, and for H-1b purposes as well, the prevailing wage required to be paid will be 100% of the wage. However, there will now be four levels of prevailing wage as opposed to two levels, which will take in account middle level positions as opposed to only entry level (Level One) and senior level (Level Two).
Procedurally, the employer or his attorney must first obtain a Prevailing Wage Determination (PWD) from the State Workforce Agency (SWA) having jurisdiction over the location of the job offer. Each State has their own form for determining a prevailing wage. There is no time limit the government has put as to how long the SWA’s have to render an opinion regarding the prevailing wage but the regulations do call for a "quick" response. When requesting a PWD, the employer may use their own survey but it has to meet the special standards the labor department has set out. Some surveys, such as surveys that publish a median wage, or one overall skill level, will now be more accepted. Please note that using an employer survey will more than likely result in a delay in processing. The regulations do suggest that if the SWA is familiar with the survey, that it should not have to do an entire analysis of the survey each time to determine if it meets DOL standards, but should accept previously accepted surveys rapidly. The easiest way to determine an appropriate salary is to refer to the OES Wage Survey and base the salary offer on this survey since it is the one the SWA's will use to make the prevailing wage determination. In determining the wage, the employer may add any guaranteed bonuses or commission to the salary to meet the prevailing wage. If the bonus or commission is not guaranteed, it cannot be added as per the regulations. Again, as before, the wage must be paid from the time permanent residency is granted or from the time the alien is admitted as a permanent resident in the U.S. We will discuss advertising later, but just a note here to clarify that the wage offered does not have to be placed in the advertisement for the position but it does have to be listed on the internal posting for the job, as before. The internal posting may include a salary range with the bottom salary equaling at least 100% of the prevailing wage for the position. Another note here is that for Schedule A positions, such as Nurse positions, a Prevailing Wage Determination from the SWA is now required. If the employer disagrees with the wage, it may file supplemental information or request a new PWD or appeal the decision.
Posted Notice.
As before, after the PWD is obtain, the employer must post a notice of the job opportunity for at least 10 BUSINESS days. The notice must be posted from 30 days to 180 days prior to filing. The notice is essentially the same notice which has existed in the past.
In House Media
If the company normally uses in-house postings or internet postings within the company, the company must do what it normally does for in-house postings, in terms of length and content of posting.
Job Order
The next thing the employer must do is to place a job order for the position with the SWA for a period of 30 days. This means that an advertisement must be sent to the SWA at least 30 days prior to filing of the labor certification.
Advertisements
The next big step is advertising. The employer must place two advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. The ads must be placed at least 30 days before filing and less than 180 days prior to filing of the labor certification.
The ads must contain,
1. The name of the employer.
2. The geographic area of employment
3. A description of the job specific enough to apprise US workers of the job opportunity. The description may include experience requirements and minimum education requirements.
4. The ad does not have to contain the salary or a detailed description of all of the requirements.
If the job is considered a Professional Job, which is generally a job listed in the addendum to the regulations, three additional recruitment steps need to be taken. The employer must choose three steps among the following choices.
1. job fairs
2. employer’s web site
3. job search web site other than employers. A website generated by a print ad, so for example, if one advertises in the New York Times and this ad also appears on the NY Times website, it counts as web site other than employers.
4. on-campus recruiting
5. trade or professional organizations
6. private employment firms.
7. an employee referral program, if it has specific incentives.
8. local and ethnic newspapers, to the extent they are appropriate for the job.
9. radio and television advertisements.
Only one of the additional recruitment steps can be used within the 30 days of filing. The others must be within 180 days.
Recruitment Report
After all of this is completed, the employer must prepare a recruitment report that describes the recruitment steps taken and the results.
The recruitment report must include the number of hires and the number of US workers rejected, categorized by the job related reasons for rejection. The DOL may request copies of the workers' resumes, sorted by the reasons for rejection. The rules do not require that the report contain the names of the individual U.S. workers who applied.
Rejection of US Workers
If a US workers does not meet the stated requirements for the job, he or she may be rejected. However, if a worker lacks a skill that may be acquired during a reasonable period of on the job training, the lack of that skill is not a basis for rejecting an otherwise qualified US worker.
The recruitment report and other supporting documentation must be retained for five years from the date of filing.
FILING
After the recruitment has been completed, the company can then file electronically or by mail to the appropriate ETA processing center. The website is www.plc.doleta.gov. There is no filing fee for filing a labor certification at this time.
PENDING CASES
If someone has a pending labor certification, the regulations allow the withdrawing and re-filing of cases prior to the placement of a job order by the SWA. Almost all cases we file are RIR cases and 99% of these cases do not require SWA job orders, therefore, in practical terms, the case may be withdrawn. If a case is successfully withdrawn, and re-files a pending application, the original filing date will be preserved, so that the file would, in effect, be converted to PERM. This is very important because of the retrogression of EB-3's, having a older filing date will decrease the chances of delay due to a regression in EB-3 numbers. All re-filed cases must comply with all new PERM rules including recruitment and minimum requirements, business necessity, audit procedures and prevailing wage.
THE CATCH
The case can only be withdrawn and re-filed if it is for the "identical job opportunity". This means, the same employer, same alien, job title, job description and minimum requirements including any changes as per SWA requests. The problem is that if the case is not found to be identical, the original application will be lost and cannot be used on another application. If the labor certification is needed in order to preserve a 7th year H-1b extension, it is very important to fully analyze the case before a pending case is withdrawn. If there are any questions with respect to whether the case is identical, it may be better to start the process over until DOL comes out with interpretations on this issue.
For example, if the company has undergone a corporate restructuring and has a new employer ID number, the DOL may not find applications to be identical. Even if the job site has changed, for example, the employer moved, the DOL could find the case is not identical. If the wage is not 100% of the prevailing wage in an old application, it may not be found to be identical.
THE WAY TO MAKE YOUR CASE WORK
Business Necessity
As has been the case in the past, business necessity for special requirements is retained. To establish business necessity, an employer must demonstrate that the job requirements bear a reasonable relationship to the occupation. As before business necessity may be used in the foreign language context. Acceptable uses of foreign language in the workplace include the need to communicate with a large majority of the employer's customers, employees, and contractors. Information to be retained include the number and proportion of employer's customers, or employees that do not speak English, plans to market to a foreign country, and why the duties include frequent communication with such individuals. Also, as before, combination of duties are allowed as long as it is shown that the employer normally hires such individuals or that it is customary in the industry.
EXPERIENCE
In an interesting twist of events, the DOL has always taken the position that experience gained working for an employer cannot be used towards the experience requirement for a labor certification. The new rule allows experience gained by the alien for the same employer if that experience is not substantially comparable to the job for which certification is sought. Substantially comparable is defined as a job requiring performance of the same duties more than 50% of the time. Also, the DOL has taken a very liberal approach with respect to related entities, such as foreign employers, and in the new regulations says that experience can be used for labor certification purposes if the employing entity does not use the same Tax Id Number, which means that experience gained abroad or in a subsidiary may be used.
IF YOU OWN YOUR OWN COMPANY?
There is no specific prohibition to filing a labor certification if the alien is the owner or related to the owner of the company. However, a bona fide job opportunity must exist. If in effect, the owner of the company is the sole employee and sole shareholder, it is likely a bona fide job opportunity would not exist. The regulations list a number of items and factors which would show whether or not the business is related to the alien and whether a bona fide opportunity exists. This discussion will be for another article.
LAY OFFS
If an employer has laid off US workers in the area of intended employment, it must consider any workers laid off within the 6 month prior to the filing of the labor certification.
DOL- THE AUDIT INVESTIGATION
I have covered the essentials of PERM in this article and started by writing that the DOL will not check most applications, but this does not mean that employers should cut any corners in their putting together of documentation and following the rules but they may be severely punished if they or their counsel does not fully comply with the regulations.
The DOL can request an audit of any pending labor certification for either cause or randomly. If selected for an audit, the Employer will receive an audit letter stating the additional documentation to be submitted and set a date 30 days from the date of the letter for submission and advise that the application will be denied if the information is not received by the deadline. If the employer does not respond, the application will be denied. In addition, the employer may also be required to conduct supervised recruitment for any future labor certification filings for up to 2 years. Therefore, the failure to respond to an audit letter could mean that the company's employees would not be able to use PERM for up to 2 years. Supervised recruitment is the same process that has existed for years and requires placing a three day ad through the DOL, and is very tedious, time consuming, and most importantly, will cause significant delays in processing of a labor certification.
FINAL APPROVAL OR DENIAL.
The DOL will send a written approval notice or denial notice by e-mail or by mail. The actual Final Determination notice will be sent by mail to the attorney or the company. If the Final Determination is negative, a request for review can be made. If there is no request for review, a new labor certification can be filed at any time thereafter.
DENIAL AFTER GRANTED
After the labor certification is approved, it may be invalidated by USCIS or a consular officer at the Department of States if either one of these parties determines that their was fraud or willful misrepresentation of a material fact. If possible fraud is found before a final labor certification determination is made, the DOL will refer the matter to USCIS for investigation. If after 90 days, no receipt or other procedure such as a criminal indictment is filed, the DOL may continue to process the application. The DOL can also revoke an application if it finds that the certification is not justified. In this instance, DOL will notify the employer and the employer has 30 days in which to submit evidence which would rebut the DOL findings. The Department of State and USCIS would be notified as well.
BOTTOM LINE
As the reader can determine from this article, this process is much more complicated, time consuming, and meticulous than RIR. The benefit is speed, the downfall is that the company can no longer view the labor certification as affecting the employee who wants a green card, but the entire company's ability to process other labor certifications. It is very important for the company to get more involved in the process, to understand the process, and to ensure that all required documentation is put together and that a response is made in a timely fashion to ensure that the company is not punished.
What the reader should realize is that this is not merely an increase in the speed of processing, but a whole new world in terms of labor certification and a new set of rules to abide by. Our firm will be holding several seminars in the next couple of months for employers and employees to explain the process and bring people up to speed in terms of what to expect and what we understand about the process to date.
We anticipate that things will change and interpretations will become clearer as time goes on.
Please contact our offices if you are interested in the seminars and continuing up dates on PERM.
