PERM Labor Certification

PERM is the new labor certification regulation. It became effective on March 28, 2005. It differs from the prior labor certification process in numerous ways. Each day the staff of May Law Group studies developments in the law relating to PERM and prepares to deal with the most complex and difficult situations that arise under PERM.

The following are highlights of the PERM rule:

• Internet filing is permissible as well as filing via mail to two national processing centers.
• The processing time is faster. The Department of Labor will render decisions within 45 to 60 days providing that the filing is performed via the internet, the case is not a re-filed case and there is no audit or supervised recruitment. Audited cases will not be processed within this time frame.
• Experience obtained on the job with the same employer is permitted for positions that are not substantially comparable to the original job; not substantially comparable means that the job differs more than fifty percent from the original job.
• Under PERM there is no waiting period to re-file a petition that has been denied. Prior to PERM a waiting period resulted after a denial.
• Under PERM an employer conducts recruitment during the 30 to 180 day period prior to filing the labor certification application.
• A prevailing wage must be obtained by the employer from the state workforce agency prior to beginning recruitment.
• Under PERM the employer cannot offer 5% less than the prevailing wage. The 5% differential is eliminated.
• Employers must maintain an audit file of filed labor certifications for five years after each case is filed.
• Employers are no longer required to file supporting documentation with the labor certification filing. Under PERM supporting documentation, such as the resumes received in response to an advertisement for the position, copies of the actual advertisements for the position, and the recruitment results, are placed in the audit file to be retained for five years.
• The newspaper advertisement under PERM must contain the name of the employer, direct applicants to send resumes or report to the employer, describe the job opportunity in a manner sufficient to apprise U.S. workers of the job opportunity, and indicate where the job is located in order to apprise job applicants of the commuting distance. The advertisement does not need to include a salary. If a salary is included the salary cannot be lower than the prevailing wage.
• Professional positions, those requiring a college degree or higher education, must select three additional recruitment steps. Two of the three methods of recruitment must be completed in the 30 to 180 day period prior to filing the labor certification application. One method of recruitment can be conducted in the 30 day period prior to filing.
• There is no fee charged by the Department of Labor for filing a PERM application.
• Business necessity is still permitted to justify some job requirements under PERM.
• Prospective PERM employers are not permitted to reject U.S. applicants if the U.S. worker could acquire the skills necessary to perform the job during a reasonable period of on the job training.
• Audits of an employer’s audit file can arise under PERM either randomly or upon review of the labor certification application. Answers to specific questions on the labor certification applications can trigger audits. Supervised recruitment by the Department of Labor can result from an audit.
• The Department of Labor sends out audit letters requiring the employer to provide the supporting documentation in the audit file. Employers have thirty days to respond to the audit letters. If an employer does not provide the required documentation, the labor certification will be denied and the Department of Labor can require the employer to utilize the supervised recruitment process for up to two years for subsequent labor certification filings. An audit by the Department of Labor may also result in supervised recruitment.
• Labor certifications filed under the previous labor certification system can continue under the old labor certification system or be re-filed under PERM. Re-filing of previously submitted labor certifications is permitted under PERM in certain circumstances with retention of the original labor certification priority date. In order to re-file and retain the original priority date the following must be done:
• All PERM filing and recruitment requirements met and a PERM compliant labor certification must be filed along with a copy of the original labor certification.
• The job must be identical to the one listed in the original labor certification.
• No job order may have been placed with the state workforce agency.
• The original labor certification must be withdrawn.
• The PERM labor certification must be filed within 210 days of withdrawal of the original pre PERM labor certification.
• The Federal Employment Identification Number of the employer determines the identity of the employer under PERM. Prior to PERM corporate relationships determined the identity of the employer for labor certification purposes.