Permanent Residency

The Department of Labor (DOL) issued a statement on or about November 15, 2006, providing guidance, regarding how certain cases in the Backlog Centers which were inadvertently withdrawn (as being "re-files due to technical problems) would now be reinstated. The Statement is reproduced below.

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.

According to the Labor Department:

No. The PDS will return a status of "in process" as a case moves through the various stages of the case review and analysis process at a BEC. Depending on the case type and filing date, some cases may show a status of "in process" for some time as the case moves through the various stages.

Again, depending on the case type and any issues that arise with the case, you may hear from the BEC while your case is in process and to facilitate faster processing, you should respond as quickly and completely as possible.

According to the Labor Department:

If you have not done so already, send an e-mail request to the No BEC Contact box at nobeccontact@dal.dflc.us for the Dallas BEC or at nobeccontact@phi.dflc.us for the Philadelphia BEC. The e-mail must contain the following information:

If you are an active investor in a U.S. enterprise in which you are investing at least $1 million (US), or $500,000 (US) in certain special locations, and the enterprise creates a certain number of jobs, then you may be able to obtain U.S. Permanent Residency under the EB-5 category.

If you are capable of performing unskilled labor and you have an employer who is offering you a full time job: you may be able to qualify for U.S. Permanent Residency based on the EB-3 "Unskilled Workers" category PROVIDED that the job is NOT on the Labor Department's "Schedule B", and a visa is available.

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?")

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:

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.

According to the Labor Department:

Yes, but only if the wage source used to make the determination was one other than the wage component of the Occupational Employment Statistics (OES), i.e., an employer-provided survey, a McNamara-O'Hara Service Contract Act or Davis-Bacon Act wage, or a Collective Bargaining Agreement wage. To apply under PERM, those employers using the OES must obtain a prevailing wage determination after March 8, 2005.

NOTE: In all labor certification applications filed (postmarked or electronically dated) on or after March 8, 2005, the wage offer must be 100% of the prevailing wage determination and, if the OES is used to make the prevailing wage determination, the determination must be based on the four wage level provision.

If Schedule B under the regulation in effect prior to March 28, 2005, has been eliminated and there is no longer a waiver provision for those occupations listed in Schedule B such as household domestic service workers, bookkeepers, laborers, etc., does that mean employers are not permitted to obtain a labor certification for those occupations?

According to the Labor Department:

No, the elimination of the former regulation's Schedule B and its waiver provision does not prevent employers from seeking labor certifications for the occupations listed in Schedule B. To the contrary, employers are free to file applications under the provisions of PERM, as appropriate, for occupations found in the former regulation's Schedule B and are not required to obtain a waiver in order to do so.

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:

The Department of Labor considers a request for review to be pending with BALCA under 20 CFR 656.24(e)(6) at the time either a request for BALCA review or a request for reconsideration is submitted to the Certifying Officer.

If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?

According to the Labor Department:

Yes, the employer may file an application previously denied under Schedule A for a college or university teacher 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:

No, a time limit has not been imposed on the authority of Certifying Officers to revoke labor certifications.