PERM (Program
Electronic Review Management)
A NEW WAY OF LABOR CERTIFICATION
Step 1:
PREVAILING WAGE: Under the new rule, the employer's will be
responsible for Payment of 100% of the Prevailing Wage and the manner
for challenging a prevailing wage determination apply equally to H-1Bs
and to Labor Certifications. The final rule clarifies that the changes
to prevailing wages in the Consolidated Appropriations Act of 2005,
signed on December 8, 2004, related to the filing of H-1B applications
applies equally to the labor certification program. The prevailing wage
required to be paid is 100% of the prevailing wage; the 5% variance is
no longer allowed.
USE OF FOUR SKILL LEVELS
Governmental surveys such as the DES shall provide for 4 levels of wages
commensurate with experience, education, and the level of supervision.
If only two levels are currently provided, two new levels can be created
by dividing by 3 the difference between the two levels offered, adding
the quotient obtained to the first level, and subtracting that quotient
from the second level. Guidance to the State Workforce Agencies on how
to apply the new four levels will be forthcoming
Note: Example - The DES salary for an Electrical Engineer in Ventura
County, California Software Engineer:
DES I = $53, 747 DES II = $86,174
$86,174 - $53,747 = $32,427
1/3 of $32,427 = $10,809 (" Quotient")
New DES II = $53,747 + $10,809 = $64,556
New DES III = $86, 174 - $10,809 = $ 75,365
Inclusion of Discretionary Bonuses, Commissions, Cost-of-Living
Allowances
These items are included in the OES wage data. Under current policy,
they can be included in determining the wage offered by the employer as
long as such payments are guaranteed by the employer, and are thus not
discretionary. However, the final rule does not change the attestation
provisions under the General Instruction at section 656.10 ( c) (2) that
if the wages are based on commissions, bonuses or other incentives, an
employer must guarantee a prevailing wage paid on a weekly, bi-weekly,
or monthly basis that equals or exceeds the prevailing wage. Note, there
still remains the conflict that the OES survey measures the average rate
of wages paid in the survey year's sample but the employer must
guesstimate what are typically variable and discretionary pay factors on
a guaranteed basis and must pay them on a periodic versus annual basis.
Payment of the Prevailing
The current regulation that the
prevailing wage must be paid either from the time permanent residency is
granted or from the time the alien is admitted to take up the certified
employment. Note that when "an alien is admitted to take up the
certified employment" also refers to admission as a permanent resident.
Validity of Prevailing Wage Determinations
If the employer disagrees with the Prevailing Wage Determination, it may
file supplemental information, or file a new PWD request, or appeal.
Filing a new PWD may be done at any time. The filing of a second
alternative survey will be considered as a new request and a new review
period will be initiated.
Step 2: RUNNING ADVERTISEMENTS:
ADVERTISEMENTS
The employer must place two advertisements on two different Sundays in
the newspaper of general circulation in the area of intended employment.
Both ads must be placed more than 30, but not more than 180 days
before filing. The ads may be placed on consecutive Sundays. If
the job is located in a rural area with no Sunday edition, the employer
may use the edition with the widest circulation. However, the use of a
suburban newspaper on a day other than Sunday is not allowed. Placement
of the ad under an inappropriate heading or keyword would be considered
a failure to make good-faith efforts to recruit U.S. workers. The ad
must list the name of the employer, the geographic area of employment
(only if the job site is unclear, e.g., if applicants respond to a
location other than the job site or if the employer has multiple job
sites), and a description of the vacancy specific enough to apprise US
workers of the job opportunity. Documentation of the ad can be supplied
by a copy of the newspaper page or proof of publication supplied by the
journal. If the job requires experience and an advanced degree, the
employer may use professional journal in lieu of one of the Sunday ads.
Three Additional Recruitment Steps for professionals
The PERM regulation retains the requirement
in the proposed regulations that applications for professional jobs must
have additional recruitment. The list of permitted steps are (1) Job
fairs, (2) employer's web site; (3) job search web site other than
employer's; (4) on-campus recruiting; (5) trade or professional
organizations; or (6) private employment firms. (7) an employee referral
program, if it includes identifiable incentives; (8) a notice of the job
opening at a campus placement office, if the job requires a degree but
no experience; (9) local and ethnic newspapers, to the extent they are
appropriate for the job opportunity; and (10) radio and television
advertisements.
Further, a web page
generated in conjunction with a print ad now counts as a website other
than the employer's. The additional recruitment steps must take place no
more than 180 days before filing. The employer is not required to take
different steps each month. Only one of the additional recruitment steps
may take place within 30 days of filing. Form ETA 9089 requires
the employers to specify the dates of each additional recruitment step.
The final rule specifies how each type of
additional recruitment activity can be documented. Alternative
recruitment steps only require employers to advertise for the occupation
involved in the application rather than for the job opportunity
as is required for the newspaper ads.
Offered Wage Not Required in Recruitment Except for Internal Posting
DOL does not require that the offered
wage be included in the recruitment efforts; however, it does have to be
included in the internal posting but a range is permitted as long as the
bottom is 100% of the prevailing wage, and the range must include the
"offered wage," i.e. the wage offered to the alien at the time the labor
certification is filed.
Recruitment
Report
Contents of Recruitment Report
The employer must prepare a recruitment report that describes the
recruitment steps taken and the results. The recruitment report must
include the number of hires and the number of US workers rejected,
categorized by the lawful job-related reasons for rejection. The CO may,
after reviewing the employer's recruitment report, request copies of the
US workers' resumes, sorted by the reasons for rejection. The employer
must sign the recruitment report. In response to numerous comments from
employers who receive a large volume of unsolicited resumes, the final
rule does not require the employer to identify the individual U.S.
workers who applied for the job opportunity.
Failure to Meet the Minimum Requirements
An applicant's failure to meet the employer's stated minimum
requirements is a lawful reason for rejection; however, if a worker
lacks a skill that may be acquired during a reasonable period of
on-the-job training, the lack of that skill is not a lawful basis for
rejecting an otherwise qualified worker. This final rule does not
specify what constitutes a reasonable period because the training period
may vary by occupation, industry, and job opportunity.
Conversion of Pending Cases
The regulation allows the withdrawing and re-filing
of cases prior to the placement of a job order by the SWA. An employer
who successfully withdraws and re-files a pending application will
preserve the original filing date. All re-filed cases must comply with
all the requirements of the new PERM final rules, including recruitment,
minimum requirements, SVP, business necessity, audit procedures and
prevailing wage. Pending applications which are not withdrawn after
PERM's effective date will continue to be processed under the current
rules in backlog reduction centers and regional offices. Processing
times for these applications should continue to be posted on the DOL
website.
Withdrawal and Re-filing of Pending
Applications Under PERM Limited to Identical Job Opportunity
The final rule defines this term as applications
which have the SAME employer, alien, job title, job location, job
description and minimum requirements, including changes made in response
to an assessment notice from the SWA prior to PERM's effective date.
(The limits imposed by the need for identical applications present a
variety of problems, which will require DOL interpretation and
resolution). If the applications are not found to be "identical," then
the re-filed application will be processed under the new filing date and
the original application will be withdrawn and the filing date on the
withdrawn application will be lost and cannot be used on another
application. Given the need to also preserve filing dates for seventh
and subsequent H-IB extensions, as well as keeping section 245(i) on the
radar screen, the conversion process has important tactical
significance. It is clear that additional
guidance and interpretation must be issued by DOL before anyone can know
how rigidly the "identical" concept will be applied in practice, since
it is unduly restrictive as drafted in the final rule.
We have tried our best to give brief summary of the
requirements for PERM and hope, it will help the employers in making
important decision regarding Labor Certification Process.
Inclusion of Attorneys’ Fees:
If the beneficiary “required” to pay
attorney fees, it is possible the position will be challenged as to
whether or not the job is open to U.S. workers. (20 CFR Section
656.10(c)(8))
Legal Fees: $4500 (Payable in
Installments)
COST: Depends on case to case. It
includes Advertisement, immigration fees and interview
Legal Fee:
Labor Certification $2000
I-140 $1250
I-485 $1250
Immigration Fee:
I-140 $195
I-485 $395
Fingerprint $70
