Documentation Required to Satisfy DOL in PERM Applications

March 12, 2011 by Immigration Law Attorney Lena Korial-Yonan, Esq.

This article is Part two of a previous article on advertising requirements under PERM applications. Part one of this article can be located on this same website. For a general discussion of PERM and why employers need to file PERM applications in some immigration cases, please refer to my article at: http://www.usimmigrationlawyers.com/resources/immigration-law/employment-visa/clarification-perm-filing-procedures.

Examples of Jobs that Qualify for an Employment Based Green Card

PERM can be filed for employees ranging from what is considered as unskilled labor to even Master's degree positions. For example, a baker is a sample job that employers can file PERM applications for, and a baker is generally considered an unskilled position. You can refer to the ONet for details on every job and the minimum requirements for that job. Please note that the ONet often changes their information, and so you should print out the ONet information in case the information changes later on.

Whether a position is considered to be a professional position is listed on Appendix A of PERM Regulations. Some examples of professionals include IT positions, engineering positions and accountants. A complete list will soon be available for viewing on www.foreignlaborcert.doleta.gov. Professional positions are being differentiated from other positions because they require the employer to conduct extra recruitment on top of the usual PERM requirements, and some of the additional ways that the employer can recruit are explained below through real case examples recently decided by BALCA.

Please note that even if the employer does not require a bachelor's degree, if the position is listed in the list in Appendix A, then the professional recruitment requirements apply. In 2008, BALCA denied a PERM case for a property manager because the employer did not perform the extra recruitment for a professional position, holding that he did not require a bachelor's degree for the position offered. BALCA disagreed and held that since the job of property manager is on Appendix A (in the year of 2008 anyway), the employer was required to recruit for a professional position. See EPI Limited Management.

Purpose of PERM

The PERM process is in place to ТtestУ the market for the occupational position offered. In other words, PERM is there to test the work market to make sure that there are no qualified U.S. citizens that can and are willing to accept the offered position.

Signature Requirements of PERM Applications

Although most PERM applications are filed online with the U.S. Department of Labor (DOL), if the PERM application is filed by mail, then the attorney, employer and alien (employee) must all sign the PERM application before filing it. See Matter of CafЋ Italiano issued on January 31, 2011. It is not a valid excuse if the employee is in a remote village in Kosovo and cannot sign the ETA 9089, as in the above-mentioned case. If the PERM application is filed online, then the employer, lawyer and alien are required to sign the CERTIFIED PERM application, once they receive it in the mail.

Employee Referral Programs

One recent decision issued on March 2, 2011 discusses the requirements for the Employee Referral Program, which is a form of recruitment. In the case of Deloitte Services PL, BALCA denied the PERM application finding that the employer's submission of the proof of the dates that the employee referral program took effect was not enough. See 2010-PER- 00348. BALCA states that under 20 C.F.R. Section 656.17(e)(1)(ii)(G), both proof that the program was advertised including dates and proof of the specific incentives that the program offered are required. In the above case, BALCA states that the employer provided no proof of the incentives offered and provided no proof of actually advertising the program.

Information that MUST be contained in all Advertisements

In a different case on February 11, 2001, BALCA reversed the DOL denial and approved the PERM application, finding that the employer' advertisements were correct under PERM regulations. The employer, a dental office, had listed their complete business name and complete address in their advertisements. DOL requires that employers identify their name and address in their advertisements so that people viewing the job opening can be made aware of the job opportunity. The case to reference for the February 11, 2011 BALCA decision is Dr. Deza's Dental Office with cite of 2010-PER-00113.

As a general rule, DOL has held that advertisements should state if any travel or overtime will be required. DOL notes that this information is important for potential employees to know, and so this information should be included in the advertisements as well as on the ETA 9089. In addition, as in the case of a live-in housekeeper, the requirement that the employee lives on the employer's premises must be stated in all the advertisements used as part of the recruitment and on the ETA 9089.

For other information on advertising requirements, please refer to my article at the following link:

http://www.needimmigrationhelp.com/advertising-requirements-in-perm-cases-for-employment-based-green-card-applications.php

Employer's Recruitment Summary

On February 14, 201, BALCA denied the PERM application finding that the employer did not provide the total number of applicants for the position and also that the employer's statement that the two applicants that he did interview were "not qualified" is not a sufficient explanation of the requirement of providing a lawful job related reason for rejecting the applicants. The case in point is Simmons Audio Video Etc. Inc. with cite 2010-PER-00167. The employer must be more specific about the reasons why he did not hire the U.S. citizens, and these reasons must be lawful job related reasons.

As a side note, the employer cannot say that the person just did not fit in, I did not like the person, the person was not what we are looking for, etc. The employer must provide lawfully job related reasons, such as that the applicant was qualified but he or she did not accept the wage offered.

Proof Employer Must Keep if Headhunter Employment Agency Used

Although using an employment agency (headhunter) to recruit for the position seems like an easy way to get the recruitment done, the employer and his or her attorney must keep the following case in mind when collecting documentation to present in case of an audit. In the case of Unica Corporation, BALCA upheld the denial by DOL finding that proof of hiring the Employment Agency to recruit is not enough. The employer must also provide proof of the recruitment and proof that the recruitment took place within 180 days of filing the PERM application. Please refer to 2010-PER-00006 decided on February 09, 2011.

Employer MUST Keep Original Prevailing Wage Request

In January 2011, BALCA upheld a denial finding that the employer's failure to keep a copy or original prevailing wage request obtained before he or she filed the PERM application cannot be excused. The employer argued that he lost the original prevailing wage request, and on audit the employer submitted a new wage request showing new dates. BALCA did NOT accept the new prevailing wage and did not excuse his mistake; instead BALCA cites 20 C.F. R. section 656.10(f) which holds that employers filing PERM cases must maintain documentation of the attestations made in the application for a period of five (5) years. You can refer to the case of Apollo Consulting Services Corporation at 2010-PER-00280.

Employer Should Print Out Company Website Advertisements As They Take Place

Employers can advertise on their website for professional positions as one of the basis for recruitment. This is what the employer EZChip Inc. did when they recruited for an Applications Engineer. BALCA, however, still denied their PERM Application because the employer did not print out the pages from his website when the recruitment was taking place. The Employer in response submitted a print out from his website dated in September, but BALCA notes that his Affidavit states that he placed the position on his website from June to July. Therefore his failure to print out the pages from the website on those dates caused his PERM case to be denied. See 2010-PER-00120 dated January 12, 2011 for more details about this case.

Federal Holidays and the Notice of Posting

Generally in ALL PERM cases there is a Notice of Posting that the employer is required to post in a visible place of the employment address for a period of 10 consecutive business days. This gets tricky when the time period includes federal holidays as one of the 10 days. In one of the recent cases dated January 19, 2011, BALCA held that this will be OK if the business can prove it was open on that holiday and that the employees can see the Notice of Posting on that day. So again, this seems like a trivial thing considering all of the detailed and complex requirements of PERM applications, but this detail can cause the case to be denied. See 2010-PER-00697.

As a side note, a new trend is that employers are required to state specifically where the Notice of Posting was posted. For example, the employer can say building C of company address, break room.

Reasons for an Audit

There are many reasons that the DOL may audit a specific case. If an audit occurs, then the case will take a few years possibly before the DOL will issue its decision. The following reasons are only some of the reasons why the DOL would audit a case:

*quality control, or random process;
*any layoffs by that company (lots of rules here);
*any ownership interest by the applicant in the company;
*any familial relationship between the applicant and the employer;
*having minimum requirements that are obviously not normal to the occupation (i.e. for example requiring 6 years experience for a baker); or
*having less than 10 employees (this was relevant when PERM first started; may or may not still apply).

As of March 11, 2011, the DOL is working on January 2009 for audit cases. For a regular PERM case that is not audited, the DOL is working on February 2011, and so the time difference between whether a case is audited or not is significant.

As of March 11, 2011, the DOL is working on January 2009 for audit cases. For a regular PERM case that is not audited, the DOL is working on February 2011, and so the time difference between whether a case is audited or not is significant.

PERM applications can generally only be filed for full-time employment positions. This is different from an H-1B visa which can be for part-time employment. Also the employment is for future hiring, as the employee will not be able to file for the green card (and thus receive employment authorization) until the PERM is approved, the Petition for Alien worker is approved by USCIS and until the priority date is current. The priority date is the date that the PERM application is filed. There currently is a "backlog" depending on whether the case is considered EB-2 or EB-3.

An employer, usually through the help of counsel, must offer at a minimum the prevailing wage which can be obtained from various sources. As a general rule, it is good practice to obtain the prevailing wage as the first step in preparing the PERM application. The prevailing wage has an expiration date, so attorneys need to be mindful of tracking that deadline as well.

There is a pre-PERM rule that the applicant should generally be able to carry on a conversation in English so that he or she can perform the work duties once he or she is able to work for the employer. This rule especially comes into play when the case is being processed through U.S. Embassies. An accent should not cause the case to be denied.

If the employer requests experience, the applicant must have the experience required, unless there are alternate requirements that the applicant meets instead. In any case, the experience that the applicant gains with the employer cannot be used as meeting the experience requirement under the PERM application. The experience that the applicant relies on to meet the minimum requirements in the PERM application must be from a different employer. Regulations define different employers by having different Federal Employer Identification Numbers (FEIN). Employers may at times be required to provide proof of their FEIN by submitting business licenses, etc. to show that the FEIN on the PERM application is truly their FEIN.

Experience gained while working illegally for a different employer, however, can be used to meet the minimum requirements set forth in the employer's PERM application. DOL and USCIS both will rely on the job duties rather than the job title to determine the real nature of the job.

DOL has made registering a company a small hassle, because only the employer or an employee of the employer can register the company on the DOL website. Once the company is registered, the employer then has to create a sub-account so that an attorney can place an application on their behalf. Companies hiring several or more attorneys need to be mindful that each attorney is submitting similar information about the minimum job requirements for same or similar jobs and same information for the stated number of employees at any given time.

An employer can only file one application for each employee for the same job. Attorneys must beware when drafting the PERM application, because there really is no way to correct even minor mistakes once the PERM application is submitted. The only way to correct mistakes is to withdraw the entire application and then re-submit.

Regarding the payment of legal fees to attorneys, only the employer must pay the legal fees for the PERM process. The employee is not permitted to pay any of the fees associated with the PERM process. This law came into effect in 2007 and does not apply to cases before the law was enacted.

Summary

Employers need to be aware that in the event of a denial where the DOL finds that records were not kept, DOL can enforce supervised recruitment of all of the employer's future PERM applications for two (2) years. If supervised recruitment is enforced, the chance of approval is lessened. Currently DOL estimates that only less than 15% of PERM cases under supervised recruitment are certified, i.e. approved.

If DOL finds or suspects fraud, there are serious penalties for the employer and the applicant that are beyond the scope of this article. Therefore the only advice that can be given for employers wanting PERM applications to be filed for an employee(s) is that they need an experienced immigration lawyer to help them so that they can avoid the above and other pitfalls.

This article does not provide a summary of all of BALCA's cases. It is your responsibility to research issues relevant to your case. This article is not a replacement for legal analysis of your case by a trained professional licensed to practice law. Please refer to www.needimmigrationhelp.com for information on how to contact our law office with any questions you may have.

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