U.S. Labor Department

According to the Labor Department:

Yes, the employer may advertise with a wage range as long as the bottom of the range is no less than the prevailing wage rate.

Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to March 28, 2005?

According to the Labor Department:

No, the former regulation's Schedule B provision has been eliminated; there is no similar provision in PERM.

According to the Labor Department:

Certifying Officers have the authority to revoke an approved labor certification for fraud and willful misrepresentation, obvious errors, or for grounds or issues associated with the labor certification process.

According to the Labor Department:

No. Due to the Office of Foreign Labor Certification's (OFLC) intensive effort to eliminate the backlog, it is not practical for the BEC to delay recruitment on applications to await RIR conversion requests. Therefore, BECs will not delay recruitment to allow for RIR conversion. Requests for RIR conversion must be received prior to the beginning of supervised recruitment to be considered. Employers should send their requests and appropriate documentation as soon as possible to maximize their opportunity for RIR conversion.

Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?

According to the Labor Department:

Yes, if a job order has not been placed pursuant to the regulations in effect prior to March 28, 2005, an employer may refile by withdrawing the original application and submitting, within 210 days of withdrawing, an application for an identical job opportunity which complies with all of the filing and recruiting requirements of the new PERM regulation.

NOTE: Indicating on the Application for Permanent Employment Certification, ETA Form 9089, the desire to use the filing date from a previously submitted application, i.e., marking "yes" to question A-1, is deemed to be a withdrawal of the original application.

NOTE: If a job order for an application has been placed by the State Workforce Agency (SWA) as part of the traditional recruitment process under the regulations in effect prior to March 28, 2005, the employer is prohibited from refiling the application and retaining the original filing date. However, if an employer placed a job order as a recruitment step in a reduction-in-recruitment application, the job order is not considered a job order placed by the SWA as part of the traditional recruitment process and the employer is permitted to withdraw and refile.

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?

According to the Labor Department:

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).

NOTE: 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.

According to the Labor Department:

Yes, as long as provisions regarding the validity period are followed, the employer is permitted to use the same prevailing wage determination if the prevailing wage is for the same occupation and skill level; the same wage source is applicable; and the same area of intended employment is involved.

Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?

According to the Labor Department:

No, an application for a labor certification for Schedule A occupations is filed, in duplicate, with the appropriate Department of Homeland Security (DHS) office.

According to the Labor Department:

The Selection of Continuation Option Letter may be signed and submitted by either the employer or the employer's attorney/agent of record. We request, however, that employers and attorneys coordinate to determine who will submit the Selection of Continuation Option Letter to ensure that the appropriate Backlog Processing Center does not receive conflicting or duplicate responses. In the instance of conflicting responses, we will default to the employer's response.

According to the Labor Department:

As explained in an earlier FAQ on this subject, 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 following the procedure below, must be sent to the National Processing Center to which the application was originally submitted.

In the event employers are unable to withdraw electronically as stated above, employers should send a withdrawal request by e-mail to the appropriate National Processing Center at: PLC.Chicago@dol.gov (for Chicago) or PLC.Atlanta@dol.gov (for Atlanta). To ensure your request is processed expeditiously, please include the following information in the e-mail request:

• Show the words "Withdrawal Request" and the employer’s name in the subject line of the e-mail
• In the body of the e-mail, include the following information:
  • Case Number
  • Employer's Name
  • Employer's EIN
  • The reason for withdrawal
  • Name and title of individual requesting withdrawal

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?

According to the Labor Department:

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.

According to the Labor Department:

Yes, while the employer may choose to recruit for college and university teachers under the basic process, the employer may choose to recruit under § 656.18, optional special recruitment and documentation procedures for college and university teachers.

NOTE: The employer must support hiring of the alien by documenting that the alien was found to be more qualified than each U.S. worker who applied for the job opportunity.

According to the Labor Department:

There are several possible reasons an employer or their attorney might not have heard anything from the BEC about the case. Some examples include, but are not limited to: 1) the State or Regional office may have disposed of the case prior to shipping and the applicant did not receive notification; 2) The State or Regional office may have inadvertently not shipped the case to the BEC; 3) the BEC may have attempted to contact the applicant but the contact information was incorrect; or 4) the BEC inadvertently omitted the case during data entry.

The United States Citizenship and Immigration Services (USCIS) has posted, or will soon post, a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

According to the Labor Department:

Yes, an employer may use the posting sample of a Notice of Filing issued by the USCIS and such a posting will be honored by the Department of Labor (DOL) provided that the Notice of Filing complies with all Department of Labor regulatory requirements. DOL worked with USCIS to develop the sample posting as a customer service convenience. DOL will honor the use of the sample, but is not requiring use of the sample. Employers may use other forms as long as they comply with the regulations.

According to the Labor Department:

No, the alien does not need to have a bachelor's 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 employer's 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.

According to the Labor Department:

Yes, a prevailing wage determination must be requested from the SWA having jurisdiction over the proposed area of intended employment.

According to the Labor Department:

Because RIR applications do not undergo the same recruitment process, these applications generally reach final resolution (certification or denial) in significantly less time than TR applications. Therefore, it is often to the employer's advantage to convert applications from TR to RIR

Standards/ Major Differences

If I send in the required information about my case, will I have to respond to a Center Receipt Notification Letter (CRNL) indicating that I want to continue?

According to the Labor Department:

If the information you provide is sufficient to reconstruct the case, you will not have to respond to a CRNL as the request about the case will be taken as proof of a desire to continue. However, if information is missing that is required to continue processing, you may receive a CRNL with a corrections list of information required to continue processing. You should respond to this letter within the 45-day timeframe.

If the employer's job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), must the employer use the DBA or SCA?

According to the Labor Department:

No, the employer is not required to use a wage determination under the DBA or the SCA but may choose to do so.