Q: What standards will be used in making labor certification determinations under the PERM system?

A: The standards used in making labor certification determinations under the PERM system will be based on: 

1. whether there are not sufficient United States workers who are able, willing, qualified and available; 
2. whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and
3. whether the employer has met the procedural requirements of the regulations.

Q: How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?

A: The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

Employers will not be permitted to submit applications by FAX. An application for a Schedule A occupation is filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

Q: How long must supporting documents be retained?

A: The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification.

Q: When must applications be signed?

A: Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

Q: Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?

A: Yes, for college and university teachers, notices of filing may be posted after the selection process has been completed. An application for a college or university teacher may be filed up to 18 months after the selection is made and a notice of filing must be provided between 30 and 180 days prior to filing the application either by providing notice to the bargaining representative, if one exists, or by posting notice at the facility or location of employment.

Q: Must the ten consecutive business days posting of the notice of filing time frame end at least 30 days prior to filing?

A: Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.

Q: How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?

A: The employer must recruit under the standards for professional occupations, if the occupation involved is on the list of occupations, published in the PERM regulation, for which a bachelors or higher degree is a customary requirement. 

For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations. Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

Q: What is considered an acceptable newspaper and/or acceptable journal and is there a published list?

A: There is no published list of acceptable publications. Most employers, based on their normal recruiting efforts, will be able to readily identify those newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers. 

The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity. In the case of a rural area where there is no newspaper with a Sunday edition and the employer chooses to use the edition having the widest circulation, the employer must be able to document the edition chosen does, in fact, have the widest circulation.

Q: Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?

A: No, while the majority of the recruitment must take place within the 30- 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.

Q: If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

A: Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

Q: Can one advertisement be used for multiple positions?

A: Yes, an advertisement for multiple positions may be used as long as all provisions in advertising requirements have been met. While employers have the option to place broadly written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. 

If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the job opportunity.

Q: Must the employer place a job order with the State Work force Agency (SWA) or will a job order placed on America's Job Bank (AJB) be sufficient?

A: The employer is required to place a job order with the SWA serving the area of intended employment. It is recognized that states vary in their job order placement procedures and that some may, in fact, place job orders on AJB, in which case, as long as the employer is working through the SWA, a job order placed on AJB would be sufficient.

The employer is free to choose AJB as a means of satisfying one of the three additional steps required under professional occupations recruitment if the posting on AJB is not being used to satisfy the job order requirement.

Q: Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

A: No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

Q: Must the employer obtain a prevailing wage determination before the employer begins recruitment?

A: No, the employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a notice of filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.

Q: Does a prevailing wage determination expire?

A: Yes, a prevailing wage determination has a limited validity period as specified by the State Workforce Agency (SWA), which may range from no less than 90 days to no more than one year from the determination date. To use a SWA prevailing wage determination, the employer must file its application or begin the recruitment required within the validity period specified by the SWA.

Q: Can the employer include a requirement for a foreign language?

A: Yes, the employer can include a foreign language requirement if it is justified by business necessity. The regulation requires that a foreign language requirement be justified by business necessity based on the nature of the occupation, e.g., translator, or the need to communicate with a large majority of the employers customers, contractors, or employees who can not communicate effectively in English. 

Needing to communicate with co-workers or subordinates who can not effectively communicate in English, or having a working environment where safety considerations would support a foreign language requirement have been added to the ways to justify business necessity for a foreign language requirement.

Q: Under what circumstances may the alien use experience gained with the employer as qualifying experience?

A: If the alien beneficiary already is employed by the employer, the employer can not require U.S. applicants to possess training or experience beyond what the alien possessed at the time of initial hire by the employer, including as a contract employee: 

(1) unless the alien gained the experience while working for the employer in a position not substantially comparable to the position for which certification is sought; or 

(2) the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position.

A substantially comparable job or position means a job or position requiring performance of the same duties more than 50 percent of the time.

Q: Does the alien beneficiary need to have a bachelor's or higher degree to qualify for a professional occupation?

A: No, the alien does not need to have a bachelors or higher degree to qualify. However, if the employer is willing to accept work experience in lieu of a baccalaureate degree, such work experience must be attainable in the U.S. labor market and the employers willingness to accept work experience in lieu of a degree must apply equally to U.S. applicants and must be stated on the application form.

Q: Is the employer permitted to accept an equivalent foreign degree?

A: Yes, the employer may accept an equivalent foreign degree. However, the employer's willingness to do so must be clearly stated on the Application for Permanent Employment Certification, ETA Form 9089.

Q: Are college and university teacher occupations included in Schedule A?

A: No, only college and university teachers of exceptional ability in the sciences or arts who have been practicing their science or art during the year prior to application and who intend to practice the same science or art in the United States fall under Schedule A, Group II, Sciences or Arts.

Q: If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability, what provisions apply?

A: Applications for college and university teachers who do not qualify under the Schedule A, Group II, Sciences or Arts provision may be filed either under the provision for optional special recruitment and documentation procedures for college and university teachers, or under the provision for the basic process.

Q: What is Schedule A and who qualifies?

A: Schedule A lists those occupations for which a determination by the Department of Labor has been made that there are not sufficient United States workers who are able, willing, qualified, and available and the wages and working conditions of United States workers similarly employed will not be adversely affected by employment of aliens in those occupations. 

An employer seeking a labor certification for a physical therapist, a professional nurse, or an alien of exceptional ability in the performing arts, sciences or arts, to include college and university teachers, should Schedule A, to determine whether the aliens qualifications meet the provisions requirements.

Q: Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?

A: The criteria was purposely not included in the regulation in order to retain the flexibility to change audit criteria, as needed, for example, to focus on certain occupations or industries when information indicates program abuse may be occurring. 

The regulation grants authority to increase the number of random audits or change the criteria for targeted audits. Making the audit process predictable would defeat the purpose of the audits and undermine the programs integrity.

Q: What is invalidation?

A: The Department of Homeland Security and a Consul of the Department of State have the authority to invalidate an issued labor certification if a determination is made, either in accordance with the agencies procedures or by a court, that fraud or willful misrepresentation of a material fact involving the labor certification application exists.

Q: When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

A: The national professional journal advertisement for the job opportunity as required under the optional special recruitment provision must have been placed during the recruitment period prior to the selection of alien.

Q: Will the National Processing Centers issue confirmations of receipt for mail-in applications?

A: No, the National Processing Centers will not issue confirmations of receipt for mail-in applications. If the employer wishes to maintain a record of having mailed the application, it is recommended that a mail service which provides such documentation be used.

Q: Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?

A: No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application data is entered into the system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. 

If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

Q: How can a pending application filed under PERM be withdrawn?

A: If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.

Q: In the event of an audit, can an application be withdrawn?

A: An application can not be withdrawn once it has been selected for audit. If circumstances have changed such that the application is no longer valid or applicable, the application must be withdrawn. If an application is selected for audit, the employer can not forego the audit by claiming the application is no longer valid or applicable. The employer will be held to the audit provision standards and possible resulting consequences.

Q: If my application for certification is denied, how long do I have to wait before I can re-apply?

A: Upon receipt of the denial notification via U.S. mail, a new application may be filed at any time unless a request for review by the Board of Alien Labor Certification Appeals (BALCA) has been submitted. While a request for BALCA review is pending, a new application for the same occupation and the same alien cannot be filed.

Q: Must the required 30 day job order timeframe end at least 30 days prior to filing? 

A: Yes, the 30 day job order timeframe must end at least 30 days prior to filing. While the employer is not limited to the 30 day timeframe and may choose to post the job order for a longer period, 30 days of the posting must take place at least 30 days prior to filing. 

Q: I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?

A: Yes, an employer can satisfy Notice of Filing requirements with respect to several positions in each of these job classifications with a single Notice of Filing posting, as long as the single posting complies with the Department of Labor’s regulation for each application (e.g. contains the appropriate prevailing wage information and the Notice of Filing must be posted for 10 consecutive business days during the 30 to 180 day time window prior to filing the application). For instance, separate notices would have to be posted for an attending nurse and a supervisory nurse (e.g. nurses containing different job duties).

At the time of filing the labor certification, the prevailing wage information must not have changed, the job opportunity must remain the same and all other Department of Labor regulatory requirements must be followed.

Q: Do employer and employee must sign the application once it is certified?

A: In order to be valid, applications filed electronically must be signed immediately by the employer, beneficiary, 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. 

Q: How could an employer add information for the mailed PERM application?

A: If an application is submitted by mail, the data then will be entered into the electronically-filed system. This means that there is no way to use the mail system to try to add information that will not fit on the eForm. Mailed applications must be signed before they are sent. They will be rejected if they are filed incorrectly. The DOL expects the mailed forms to take longer to process so they are recommending eFiling for all cases. 

Q: How to save the supporting documentation for a PERM labor certification application for mandatory maintenance of PERM audit file? 

A: There is no one system that employers must use to save the supporting documentation for a PERM labor certification application. The DOL indicated that the employer has the burden of showing that the supporting documentation, commonly referred to as the audit file, is valid and defensible. This documentation must be retained by the employer for five years from the date of filing. The employer must understand that this is not a formality, but is necessary in order to respond to the DOL in the event the case is audited.

Q: How to get confirmation for mailed-in applications?

A: The DOL will not send confirmation of receipt for PERM applications that are mailed into the National Processing Centers. Therefore, employers mailing applications rather than using the online form will need to maintain their own proof that a PERM application was mailed. It is not clear what the implication of this decision will be for persons who may need proof of filing for H1B one-year incremental extensions beyond the six-year limitation. Practically speaking, it may not matter since the PERM case should be adjudicated within a month or two while the proof of the pending PERM must be at least one year earlier to take advantage of H1B extensions after the end of six years on H1B.

Q: Does the employer have to contact everyone from the state job order listed as a match?

A: If a computerized state employment system identifies workers who match the job requirements for a job order placed by an employer intending to file a PERM application, the DOL confirmed that the employer does not have to contact everyone from the state job order listed as a match. Instead, the employer must only consider or contact those persons who provide affirmative responses to the employer in the manner that the employer includes in the job order.

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