U.S. Labor Department

Revocation

Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same alien for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same alien for the same job opportunity?

According to the Labor Department:

Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same alien involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same alien and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

What To File/Documentation

Job Requirements/ Duties

According to the Labor Department:

No, labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.

Time Frames

Certifying Officer Review And Board Of Alien Labor Certification Appeals (BALCA)

According to the Labor Department:

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.

Registration

College And University Teachers--Recruitment

According to the Labor Department:

The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.

Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: "5 Attorneys," "Attorneys" or "Attorneys, multiple openings"?

According to the Labor Department:

As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.

Multiple Positions

According to the Labor Department:

The employer must file a completed Application for Permanent Employment Certification, ETA Form 9089.

Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

Attestation

Household Domestic Service Workers, Bookkeepers, Laborers, etc.

According to the Labor Department:

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.

When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?

According to the Labor Department:

Generally, all the required steps must be different. Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional "trade or professional organizations" recruitment step, or count the job order again as an additional "web site other than the employer's" step.

Our office recently received a request for "corporate documents" from the BPC. The petition was for a housekeeper. Is this request sent in error or how do we respond?

According to the Labor Department:

If the application is for a domestic servant in a private household, the employer should provide a recent tax return and/or leases, utility bills, etc. that establish the domestic employer at the address on the application.

The employer has changed names. Do we have to submit a new application or may we change the original application? How should this be done?

According to the Labor Department:

The employer must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity. In addition, a new ETA 750 Part A and Part B must be provided to continue the permanent foreign labor certification process. If the Form ETA 750 Part A and Part B have been returned for correction, the changes may be made on those existing documents.

Please note that the new employer or entity must be connected to the old one (a successor-in-interest) and cannot be an entirely new employer.