PERM

According to the Labor Department:

Congress enacted the Consolidated Appropriations Act of 2005 amending the Immigration and Naturalization Act (Section 212(p), 8 U.S.C. 1182(p)) to provide:

"Where the Secretary of Labor uses, or makes available to employers, a governmental survey to determine the prevailing wage, such survey shall provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. Where an existing government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3, the difference between the two levels offered, adding the quotient thus obtained to the first level and subtracting that quotient from the second level."

Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?

According to the Labor Department:

No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

According to the Labor Department:

The employer must use an Application for Permanent Employment Certification, ETA Form 9089, which includes a prevailing wage determination.

According to the Labor Department:

Yes, an employer must comply with the posting requirement in § 656.10(d) to file applications under Schedule A with the appropriate Department of Homeland Security office.

According to the Labor Department:

No, while many provisions in the PERM regulation are the same as, or similar to, the provisions found in the regulation in effect prior to March 28, 2005, the PERM regulation can not be applied to applications filed under the former regulation. At this point, all provisions of the PERM regulation are applicable only to applications filed on or after March 28, 2005, under the PERM regulation.

According to the Labor Department:

The four wage level provision goes into effect on March 8, 2005, as does the requirement to pay 100% of the prevailing wage.

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

According to the Labor Department:

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.

According to the Labor Department:

Backlogged cases will be processed in Philadelphia and Dallas. PERM cases will be processed in Chicago and Atlanta.

According to the Labor Department:

Requests for a duplicate ETA-9089 can be initiated by the petitioner by contacting the Department of Labor or by requesting that CIS assist with obtaining a duplicate labor certificate ETA-9089 from DOL. The following steps are suggested when requesting a duplicate ETA-9089 through USCIS. Please include on the top of the I-140, Petition for Alien Immigrant Worker, a cover sheet (preferably highlighted with colored paper) stating the following:

LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT

On the same sheet, the following information should also be included:

1. Attorney name;
2. Petitioner's name;
3. Beneficiary's name;
4. ETA case number;
5. Priority Date;
6. Specify whether you want USCIS to initiate the request for duplicate certificate ETA-9089 or you have contacted DOL to initiate the request for duplicate;
7. Proper fee, signature and all required supporting documents;
8. A print screen showing that the case has been certified.
9. Provide the reason(s) for requesting that the Service Center secure a duplicate, approved labor certificate from DOL, e.g. "Case was certified, original approved labor certificate was never received in the mail."

Once the duplicate certificate ETA-9089 is received by USCIS, the petitioner and/or his representative will be contacted via a Request For Evidence (RFE) notice in order to secure the petitioner's signature on the duplicate certificate. The certificate must be signed by the petitioner before USCIS can accept it for filing purposes.

According to the Labor Department:

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.

NOTE: 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.

According to the Labor Department:

There are three locations where you may send your questions, depending upon the type of question asked.

• If you have a technical question (for example, if you forgot your password), then please email those questions to plc.help@dol.gov.

• If you have a program specific question (for example, if you have a question concerning the content of an advertisement) or a policy question, then please email your questions to one of the appropriate National Processing Centers at

  • PLC.Chicago@dol.gov (for the Chicago National Processing Center) or
  • PLC.Atlanta@dol.gov (for the Atlanta National Processing Center).

  The appropriate National Processing Center depends upon the state in which you are located.

Please note: Questions should no longer be e-mailed to perm.dflc@dol.gov.

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?

According to the Labor Department:

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, § 656.18, or under the provision for the basic process, § 656.17.

According to the Labor Department:

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. See 20 CFR 656.24(e)(6). (For more information, please see the FAQ "When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?")

According to the Labor Department:

If the alien beneficiary already is employed by the employer, the employer can not require U.S. applicants to possess training and/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.

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

Performing Arts

According to the Labor Department:

If an employer provided survey acceptable under § 656.40(g) provides only a median and not an arithmetic mean, use of the median is permitted.

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

According to the Labor Department:

Questions regarding audit criteria will not be addressed. 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 program's integrity.

According to the Labor Department:

Yes, the employer is permitted to request a review by the Board of Alien Labor Certification of the Certifying Officer's prevailing wage determination by submitting, in writing and within 30 days of the date of the decision of the Certifying Officer, a request to the Certifying Officer who made the determination.

For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the State Workforce Agency (SWA) determination?

According to the Labor Department:

The 30 days to file an appeal to the Certifying Officer begins on the date that the SWA makes a final decision on the case. If the employer submits supplemental information (as permitted one time), the 30 days begins after the SWA considers and makes a decision on the supplemental information.

Must the employer contact all individuals identified as a "match" by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?

According to the Labor Department:

The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.