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Legal Resources

December 15, 2008
Question: What is the effective date of the new Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?

The PERM regulation is effective March 28, 2005, and applies to labor certification applications for the permanent employment of aliens filed on or after that date.

Question: As of March 28, 2005, will all previously filed labor certification applications be converted and/or processed under PERM?

No, labor certification applications filed prior to March 28, 2005, will not be automatically converted and/or processed under PERM. Applications filed under the regulation in effect prior to March 28, 2005, will continue to be processed at the appropriate Backlog Processing Center under the rule in effect at the time of filing. As of March 28, 2005, applications (Form 750) will no longer be accepted under the regulation in effect prior to March 28, 2005, and instead new applications (Form 9089) will need to be filed under PERM at the appropriate National Processing Center. Only if an employer chooses to withdraw an earlier application and refile the application for the identical job opportunity under the refile provisions of PERM will a previously filed application be processed under the PERM regulation.

Are any PERM regulation provisions applicable to applications filed under the regulation in effect prior to March 28, 2005?

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.


STANDARDS/ MAJOR DIFFERENCES

What standards will be used in making labor certification determinations under the new, streamlined system?
The standards used in making labor certification determinations under the new system will be substantially the same as those used in arriving at a determination in the former system. The determination will continue to be based on: whether there are not sufficient United States workers who are able, willing, qualified and available; whether the employment of the alien will have an adverse effect on the wages and working conditions of United States workers similarly employed; and whether the employer has met the procedural requirements of the regulations.


What provisions have changed in the new system?
This is a brief list of some of the changes; they are covered in greater detail in the particular topic areas below.

Filing: Employers have the option of submitting the new form, the Application for Permanent Employment Certification, ETA Form 9089, electronically directly to a National Processing Center.

Filing: Supporting documentation is not submitted with the application.

Filing: Employers file applications directly with the U.S. Department of Labor and not with a State Workforce Agency (SWA).

Refiling: An employer may, at any time, withdraw an application filed under the regulation in effect prior to March 28, 2005, refile under PERM, and maintain the original filing date if the new application complies with the new regulation, the application is identical to the original application, and a job order has not been placed by the SWA for the original application.

Prevailing Wage: The offered wage must be equal to or greater than the prevailing wage. The wage must be at least 100% of the prevailing wage; the 5% deviation is no longer acceptable.

Prevailing Wage: Where an acceptable employer-provided survey provides a median and does not provide an arithmetic mean, the median will be used as the prevailing wage.

Prevailing Wage: The prevailing wage validity period will vary from no less than 90 days to no greater than one year depending on the wage source used.

Notice of Filing: A notice of filing must be posted in specific locations for ten consecutive business days rather than merely ten days.

Recruitment: The employer is required to conduct recruitment (more than 30 days and less than 180 days) prior to filing.

NOTE: While pre-filing recruitment was the basis for reduction-in-recruitment under the regulation in effect prior to March 28, 2005, the recruitment provisions in the new system differ.

Recruitment: Recruitment provisions are divided into professional and nonprofessional occupations and additional recruitment steps are required for professional occupations.

Recruitment: Sunday edition newspaper advertisements are required.

Recruitment: A job order, obtained through the SWA, is required.

Recruitment: The special handling provision has been removed. Optional recruitment provisions for college and university teachers are in § 656.18. Provisions for college and university teachers of exceptional ability in the science and arts are covered in § 656.5.

Revocation: Certifying Officers have the authority to revoke approved labor certifications.

Adjudication: Certifying Officers will either certify or deny applications. The interim step under the previous regulations of issuing a Notice of Finding (NOF) has been eliminated.

Schedule A, Professional Nurses: A Commission on Graduates of Foreign Nursing Schools (CGFNS) Certificate rather than merely passage of the CGFNS examination is required to qualify an alien for Schedule A certification.

Schedule A, Professional Nurses: Passage of the National Council Licensure Examination for Registered Nurses (NCLEX—RN) examination is a means by which to qualify the alien for Schedule A certification.

Schedule B: Schedule B has been eliminated.



FILING

HOW TO FILE

How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?

The employer has the option of filing an application electronically (using web-based forms and instructions) or by mail. However, the Department of Labor recommends that employers file electronically. Not only is electronic filing, by its nature, faster, but it will also ensure the employer has provided all required information, as an electronic application can not be submitted if the required fields are not completed.

NOTE: Employers will not be permitted to submit applications by facsimile.

An application for a Schedule A occupation is filed with the appropriate Department of Homeland Security office and not with a Department of Labor National Processing Center.

How does the employer file an application electronically?
The employer can access a customer-friendly web site (http://www.plc.doleta.gov) and, after registering and establishing an account, electronically fill out and submit an Application for Permanent Employment Certification, ETA Form 9089.

NOTE: Additional information regarding personal identifiers will follow.

NOTE: The web site also provides an option to permit employers that frequently file permanent applications to set up secure files within the ETA electronic filing system containing information common to any permanent application the employer files. Under this option, each time an employer files an ETA Form 9089, the information common to all of its applications, e.g., employer name, address, etc., will be entered automatically and the employer will only need to enter the data specific to the application at hand.
Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?

Yes, the system provides the employer with the choice, upon finishing an online session, of either saving an application as a draft or submitting it to a National Processing Center.

Where does an employer file an application by mail and how can people contact the National Processing Centers to ask questions about an application?

National Processing Centers have been established in Atlanta and Chicago. Employers submit their application to the processing center with responsibility for the state or territory where the job opportunity is located.

The address and contact information for each processing center and the states and the territories within their jurisdictions are provided below.

United States Department of Labor
Employment and Training Administration
Atlanta National Processing Center
Harris Tower
233 Peachtree Street, N.E., Suite 410
Atlanta, Georgia 30303
Telephone: (404) 893-0101
FAX: (404) 893-4642

Alabama Connecticut Delaware District of Columbia
Florida Georgia Kentucky Maine Maryland Massachusetts Mississippi New Hampshire New Jersey New York North Carolina Pennsylvania Puerto Rico Rhode Island South Carolina Tennessee Vermont Virgin Islands Virginia West Virginia


United States Department of Labor
Employment and Training Administration
Chicago National Processing Center
Railroad Retirement Board Building
844 N. Rush Street
12th Floor
Chicago, Illinois 60611
Telephone: (312) 886-8000
FAX: (312) 886-1688

Alaska Arizona Arkansas California Colorado Guam Hawaii Idaho Illinois Indiana Iowa Kansas Louisiana Michigan Minnesota Missouri Montana Nebraska Nevada New Mexico North Dakota Ohio Oklahoma Oregon South Dakota Texas Utah Washington Wisconsin Wyoming

What is the process by which an employer registers and files an application on line?

In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

Permanent Online System account – An account is created after an employer has submitted registration information on-line at www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

Sub-account – The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

Federal Employer Identification Number (FEIN) – The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

Username – The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

Password – An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration, the individual initially accessing the account is required to create a new password. The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

Personal Identification Number (PIN) – The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.
Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?
Yes, an attorney or agent may submit applications under the following circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the employer will change the employer’s temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a sub-account for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer’s PIN. When the attorney or agent logs in and changes the attorney's or agent's password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?

The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.

NOTE: The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.
If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?

No, a parent company can not create sub-accounts for subsidiaries having FEINs different from that of the parent company in order to centralize administration and control. When an application is being completed using a sub-account, employer information from the main account, including FEIN and address, is automatically populated into the application and that information can not physically be changed or altered.

Will the National Processing Centers issue confirmations of receipt for mail-in applications?

No, the National Processing Centers will not issue confirmations of receipt for mail-in applications. If the employer wishes to maintain a record of having mailed the application, it is recommended that a mail service which provides such documentation be used.
Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?

No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application is data entered into the system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

Where I can email my questions?

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.

Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same alien for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same alien for the same job opportunity?

Under the old and new permanent labor certification regulations, DOL certifies that there are not available U.S. workers for a particular "job opportunity." See, e.g., 20 CFR 656.10(c) (new PERM regulation) and 656.20(c) (prior regulation). DOL's longstanding policy has been that an employer is not prohibited from filing applications for the same alien involving different, legitimate job openings to which U.S. workers may be referred. See, e.g., Field Memorandum 48-94 (May 16, 1994) (Policy Guidance on Alien Labor Certification Issues at § 6). However, DOL has not processed or certified multiple labor certifications for the same alien and same job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

In the months since the PERM regulation's streamlined procedures for filing and processing of permanent labor certification applications took effect on March 28, 2005, some employers have filed multiple electronic applications for the same alien and same job opportunity. In some cases, the multiple applications are identical in all respects and may have been the result of inadvertently repeating the "submit" function. In other cases, the applications differ in minor respects, such as answering questions regarding job requirements differently or varying in descriptions of skill requirements. In some cases, these minor differences may have been intended to prematurely respond to electronic denials (that is, in advance of receiving the written denial letter) or to test the system's responsiveness and auditing criteria.

DOL intends to apply its longstanding policy regarding multiple applications to multiple applications filed under the new PERM regulation. Therefore, an employer may not have more than one Form 9089, Application for Permanent Employment Certification, in process under the PERM regulation for the same alien beneficiary for the same job opportunity at any given time.

Recognizing that multiple filings are already in the PERM queue for the same employer, alien and job opportunity, we have developed the following procedures to transition in implementation of this policy to PERM:
If an employer currently has multiple applications in process under PERM for the same alien and job opportunity, the employer must withdraw, by January 19, 2006, all applications other than the one it wants processed. (For withdrawal information, see the separate FAQ on procedures for withdrawing an application.)

As of January 19, 2006, if multiple applications from an employer for the same alien and same job opportunity are still pending under PERM, we will assume that the employer wishes the last-filed application to be processed (since this presumably includes any corrections or clarifications from earlier filings) and the other pending PERM applications for the same alien/job opportunity will be denied.

After January 19, 2006, if an application for a particular employer/alien/job opportunity is pending under PERM and a second application is filed under PERM for the same employer/alien/job opportunity, we will continue to process the first-filed PERM application and deny subsequent PERM filings except where the employer follows the procedures outlined here. If the employer wishes to file a new or changed application under PERM for that same alien and job opportunity, the employer should not file the new PERM application until the employer formally withdraws the PERM application currently in process or the employer has received the Final Determination form notifying the employer that the previous application is denied. NOTE: An employer may not file a new application for an alien while a request for review is pending with the Board of Alien Labor Certification Appeals (BALCA) for that same alien, employer, and job opportunity. See 20 CFR 656.24(e)(6).

DOL will continue to apply its longstanding policy regarding multiple applications under Field Memorandum 48-94 where multiple cases have been filed and are being processed under the old regulation at Backlog Elimination Centers. DOL will continue to process and certify multiple permanent labor certification applications filed under the prior regulation for the same alien if the employer is proposing to employ the alien in multiple different bona fide job openings to which U.S. workers can be referred. DOL will not process or certify multiple labor certifications filed under the prior regulation for the same alien, employer, and job opportunity on grounds that the additional applications cannot represent a bona fide different job opportunity available to U.S. workers.

If a BEC identifies multiple pending applications for the same employer, job opportunity, and alien, the BEC will issue a Notice of Findings for all related applications, and provide the employer the opportunity to identify which application contains the bona fide job opportunity. Should an employer currently have multiple applications pending at a BEC for the same employer, job opportunity, and alien, the employer may take the initiative and notify the BEC as to which application it wishes to have processed and withdraw all other applications.

This FAQ does not address the situation in which an application for the same employer, alien and job opportunity is pending under both the prior and new PERM regulation. DOL is considering stakeholder input on this situation, which in some cases may have implications for priority dates.
In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?

We have removed the response to this question posted on August 8, 2005. The Department is considering questions and information stakeholders have submitted in response to this FAQ posting, and will be developing and posting a clarified response in the near future.
For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.

The status indicators for an application filed on-line are as follows:

Incomplete: A case number preceded by a "T" indicates that the application has not been formally "filed" by the employer or its agent, i.e., electronically submitted, and is still a temporary draft. When an application is electronically submitted to a National Processing Center, the "T" changes to either a "C" or "A" depending on whether the application is submitted to the Chicago or Atlanta National Processing Center, respectively.

In process: An "in process" status indicates the application is in the process of moving through the DOL's certification process. If the application is in a stage of review requiring further information/documentation from the employer, the employer will be notified.

Withdrawn: A "withdrawn" status indicates the employer has withdrawn the application.

Denied: A "denied" status indicates the application is denied. A Final Determination form, stating the reasons for the determination and advising the employer of how to request review, should the employer choose to do so, will be sent to the employer. The Final Determination must be included in any request for review, therefore, the employer must wait to receive the form before making such a request. The employer is also advised to wait for the Final Determination before filing a new application for the same alien to avoid repeating errors made in the original application.

Appeal: An "appeal" status indicates the application is under reconsideration and/or review and is considered "in process." No new application for the same alien can be filed while an application is in a reconsideration and/or review queue.

Certified: A "certified" status indicates the labor certification is granted. The certified application and a complete Final Determination form will be sent to the employer, or, if appropriate, to the employer's agent or attorney, indicating the employer may file all the documents with the appropriate office in the Department of Homeland Security (DHS).


WHAT TO FILE/DOCUMENTATION

What forms or documents must the employer include in an application?
The employer must file a completed Application for Permanent Employment Certification, ETA Form 9089.

Except as required for applications filed under § 656.5, Schedule A, supporting documentation need not be filed with the application, but the employer must provide the required supporting documentation if the employer's application is selected for audit or if the Certifying Officer otherwise requests it.

How long must supporting documents be retained?
The employer is required to retain all supporting documentation for five years from the date of filing the Application for Permanent Employment Certification, ETA Form 9089.

When must applications be signed?

Applications submitted by mail must contain the original signature of the employer, alien, and preparer, if applicable, when they are received by the processing center. Applications filed electronically must, upon receipt of the labor certification, be signed immediately by the employer, alien, and preparer, if applicable, in order to be valid.

NOTE: Where the employer provides a copy of an application to a Certifying Officer pursuant to an audit or otherwise, the copy must be signed.


FILING TIMEFRAMES

When is PERM effective and must the employer wait until the effective date to begin recruitment?
PERM is effective March 28, 2005, and will apply to all applications filed on or after the effective date.
If all applicable provisions including timeframes of the regulation have been satisfied, an application may be filed under the PERM regulation on or after the effective date. Required timeframe provisions include, among others: that recruitment be conducted at least 30 days, but no more than 180 days, prior to filing under § 656.17; that filing must be within 18 months after selection under § 656.18; and that notice of filing be provided between 30 and 180 days prior to filing under § 656.10.


REGISTRATION

Can an attorney, agent or law firm register to use the Permanent On-line System?

No, only an employee or owner of the employer entity may register to use the Permanent On-line System because employers must make the attestations required for the permanent application process and a PIN will only be assigned to an employer. The registration must be submitted by an individual with actual hiring authority for the employer. The individual listed under the "Employer Contact Information" section of the registration page must be the individual with actual hiring authority for the employer and cannot be the attorney or agent. During the registration process, the employer may create sub-accounts for attorneys or agents. We will cancel or deny registrations submitted by non-employers. Submission of a permanent labor certification application using a PIN assigned to a non-employer will be grounds for denial or revocation of a permanent labor certification.

NOTE: To withdraw or delete a registration account (as in a situation where the original registration was set up showing an attorney or representative as the "user" and/or where the contact person for the employer is not a person with actual hiring authority), please e-mail PLC.HELP@dol.gov, provide the user name and password, and request the account be deleted. At that point, the person with actual hiring authority can re-register with the correct information.
REFILING

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?
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.


Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?
No, having a different prevailing wage on the refiled application from that on the original will not impact whether or not the job opportunity is identical. For a job opportunity to be identical, the regulation requires that the employer (including address), alien, job title, job location, job requirements, and job description be identical in both the original and refiled applications. It is quite possible that the prevailing wage in the new application, which must be filed in accordance with the PERM regulations and which must evidence a current prevailing wage, will not be the same as the prevailing wage in the original application.


Should an employer withdraw an earlier application and refile under PERM?

The Department of Labor does not provide counsel as to questions of this nature. However, employers are reminded refiled labor certification applications must conform to the provisions of the PERM regulation.


How must the employer save and/or store the documentation necessary to support a labor certification application?

No one method for saving and/or storing necessary documents is prescribed, nor is any particular method proscribed. The burden of establishing the validity of any documentation provided in support of a labor certification application rests with the employer. In establishing a method by which to save/store supporting documentation, the employer must remember that the responsibility for producing valid and defensible documentation in the event it is requested by a Certifying Officer rests solely with the employer. Such documentation must be retained by the employer for five years from the date of filing


In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.


Is it possible to refile an application under the PERM optional special recruiting provision for college and university teachers if eighteen months or more have passed since the selection of the alien was made pursuant to a competitive recruitment and selection process?

No, an application can not be refiled under the PERM optional special recruiting provision on behalf of an alien selected pursuant to a competitive recruitment and selection process if eighteen months have passed since the selection of the alien.


ATTESTATION

What is meant by the "employer's being able to place the alien on the payroll" under § 656.10(c)(4)? How does it differ from having funds available to pay the alien's wage or salary in § 656.10(c)(3)?

The employer may be required, depending on the circumstances, to establish that the position offered is actually available at the time of the alien's proposed entrance into the United States. For example, the employer may be asked to provide evidence that a plant or restaurant, which is in the planning stage or under construction at the time the application is filed, will be completed at the time of the alien's proposed entrance into the United States. While the employer may be fiscally able to pay the alien, other circumstances, such as non-viability of the business itself, may preclude the employer from placing the alien on the payroll.
What role does an attorney or agent play?

Employers may have agents and/or attorneys represent them, however, the employer is required to sign in Section N of the Application for Permanent Employment Certification, ETA Form 9089, that the employer has designated the agent or attorney identified in Section E to represent it, and by virtue of its signature, is taking full responsibility for the accuracy of any representations made by the attorney or agent. In signing, the employer acknowledges that to knowingly furnish false information in the preparation of the application form and any supplement thereto or to aid, abet, or counsel another to do so is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C. §§ 2 and 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621.

NOTE: An attorney or agent is not permitted to register to use the Permanent On-line System for the employer. Only an employee or owner of the employer entity may register. Nor is an attorney or agent of either the alien or the employer permitted to participate in interviewing or considering U.S. workers for the job offered the alien. The agent or attorney may only participate if the agent or attorney is the employer’s representative, i.e., the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.


WITHDRAWAL

How can a pending application filed under PERM be withdrawn?

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, must be sent to the National Processing Center to which the application was originally submitted.

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

No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.
How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically or the application was originally filed by mail?

In the event an employer is unable to withdraw electronically, the employer 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 the 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:
Application Number
Employer's Name
Employer's EIN
Alien's Name
Name and title of individual requesting withdrawal

If the application was filed by mail or if the employer does not have access to e-mail, a letter must be mailed to the National Processing Center to which the application was originally submitted using the format as outlined above.

How can an employer withdraw a PERM application if it has already been certified?

An employer may withdraw a certified PERM application at any time. A certified PERM application may not be withdrawn electronically; therefore, the employer should send a withdrawal request by U.S. Mail to the appropriate National Processing Center where the original certification was granted as follows:
Chicago National Processing Center
ATTN: Certification Withdrawal
844 N. Rush Street
12th Floor
Chicago, Illinois 60611 OR Atlanta National Processing Center
ATTN: Certification Withdrawal
Harris Tower
233 Peachtree Street, Suite 410
Atlanta, Georgia 30303

The employer must enclose all pages of the original certified ETA Form 9089 issued by the National Processing Center and include the following information in the written withdrawal request:

Show the words "Withdrawal Request - Certified PERM Application" and the employer's name in the subject line of the letter.
In the body of the letter, include the following information:
Application Number
Employer's Name
Employer's EIN
Alien's Name
Name and title of individual requesting withdrawal
NOTE: While an application may be withdrawn at any time, if the employer has received an audit letter, it is still required to comply with the audit procedure provisions of 20 CFR § 656.20. The employer must submit the documentation required by the Certifying Officer within 30 days from the date of the audit letter.
Once an employer requests its application be withdrawn, how soon can the employer file a new application for the same alien beneficiary?

After requesting a withdrawal, an employer may not file a new ETA Form 9089 for the same alien beneficiary until one of the following occurs:

(A) Employer sees, using the online PERM system, that the status of the original case changes from "In Process" to "Withdrawn," or

(B) Employer receives confirmation (via standard U.S. Mail or e-mail) from the NPC that the ETA Form 9089 currently in process has been withdrawn.

The employer is reminded that an employer may not file a new application merely because the online status changed to "Denied." The employer must wait until it receives the Final Determination Form from the National Processing Center stating the reasons for the denial. This ensures the employer is apprised of all the application's deficiencies.

NOTICE OF FILING
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?

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.

Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?

Yes, the last day of the posting must fall at least 30 days prior to filing in order to provide sufficient time for interested persons to submit, if they so choose, documentary evidence bearing on the application.
What address must the employer provide on the posted notice of filing?

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.
For how long must the employer publish a notice of filing in the employer's in-house media?

If the employer normally recruits for similar positions in the employer's organization through in-house media, then the employer must publish the notice of filing in its in-house media in accordance with the employer's normal procedures for recruitment of similar positions or for 10 consecutive business days, whichever is of longer duration.

Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?

No, posting of the notice of filing on in-house media, including an "Intranet," can not be counted as an additional recruitment step, as it is believed that potential job applicants would only view the notice as a legal or information notice, not as an advertisement for a job opportunity, and would not apply.

Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?

No, a rate of pay does not need to be included in a notice of filing for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process. However, the notice of filing must include the required advertisement information in § 656.18(b)(3), i.e., the job title, duties, and requirements as well as the information specified in § 656.10(d)(3).

May I post a Notice of Filing for a permanent labor certification indefinitely?

Yes, an employer may post a Notice of Filing indefinitely, provided that at the time of filing the permanent labor certification application, the Notice of Filing was posted for at least 10 consecutive business days and those 10 consecutive business days all fell within 30 to 180 days prior to filing the application. In addition, the Notice of Filing must contain the correct prevailing wage information, the correct job description and must comply with all other Department of Labor regulatory requirements.

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?
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.

Where must I post a Notice of Filing for a permanent labor certification for roving employees?
If the employer knows where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) where the employee will perform the work and publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage indicated in the notice will be the wage applicable to the area of intended employment where the worksite is located.

If the employer does not know where the Schedule A employee will be placed, the employer must post the notice at that work-site(s) of all of its current clients, and publish the notice of filing internally using electronic and print media according to the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The prevailing wage will be derived from the area of the staffing agencies' headquarters.

If the work-site(s) is unknown and the staffing agency has no clients, the application would be denied based on the fact that this circumstance indicates no bona-fide job opportunity exists. The employer cannot establish an actual job opportunity under this circumstance. A denial is consistent with established policy in other foreign labor certification programs where certification is not granted for jobs that do not exist at the time of application.

Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?
The regulations require that the employer publish the notice internally using in-house media--whether electronic or print--in accordance with the normal internal procedures used by the employer to notify its employees of employment opportunities in the occupation in question. The language should give sufficient notice to interested persons of the employer's having filed an application for permanent alien labor certification for the relevant job opportunity. It is not required to mirror, word for word, the physical posting. In most cases, the physical posting language will be the most efficient way to electronically post the Notice of Filing; in others, the software program used to create the electronic in-house posting may be unable to accept all of the language used in the physical Notice of Filing. In every case, the Notice of Filing that is posted to the employer's in-house media must state the rate of pay and apprise the reader that any person may provide documentary evidence bearing on the application to the Certifying Officer. If there is insufficient space to include the Certifying Officer's address, then information as to where the address can be found must be provided.

PROFESSIONAL/ NON PROFESSIONAL
How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?
The employer must recruit under the standards for professional occupations set forth in § 656.17(e)(1) if the occupation involved is on the list of occupations, published in Appendix A to the preamble of the final PERM regulation, for which a bachelor's or higher degree is a customary requirement. For all other occupations not normally requiring a bachelor's or higher degree, employers can simply recruit under the requirements for nonprofessional occupations at § 656.17(e)(2). Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.

When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?

Generally, all the required steps must be different. Steps can not be duplicated nor can one step be used to satisfy two requirements, except in the case of copies of web pages generated in conjunction with the newspaper advertisements which can serve as documentation of the use of a web site other than the employers. For example, the employer can not count two advertisements in a local and/or ethnic newspaper, or two postings on a web site, as two steps. Similarly, the employer can not use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional "trade or professional organizations" recruitment step, or count the job order again as an additional "web site other than the employer's" step.

Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" additional step requirement for professional occupations?
Yes, but only if the placement is not being used to satisfy the job order requirement. Where the State Workforce Agency job order placement procedure consists of placement of the job order on AJB, then that job order placement can not be counted as one of the additional recruiting steps.

Is it permissible to use forms of media other than the alternative steps listed in the professional occupations recruitment provision, i.e., is it permissible to count advertisements on movie theater screens, on screens in airports, on sides of buses, billboards, etc., as additional steps?

No, it is not permissible to use other forms of media other than the alternative steps listed in the professional occupations provision as additional steps. The restriction on acceptable forms of media is governed, in part, by questions of verifiability. Employers, however, are not precluded from using these means as above and beyond the regulation requirements.

Acceptable Publications
What is considered an acceptable newspaper and/or acceptable journal and is there a published list?
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.
Is the employer permitted to use an electronic national professional or trade journal?

The employer may not use an electronic national professional journal to satisfy the provision found at 20 CFR 656.17(e)(1)(i)(B)(4) permitting the use of a journal as an alternative to one of the mandatory Sunday advertisements for professional positions. The employer may not use an electronic national professional journal to satisfy the provision found at § 656.18(b)(3) requiring an advertisement in a journal under optional special recruitment procedures for college and university teachers. The employer must use a print journal to satisfy these two requirements. However, if the employer wishes to use a professional or trade organization as a recruitment source to satisfy the additional recruitment required for professionals found at § 656.17(e)(1)(ii)(E), the employer may use that organization’s electronic journal to place an advertisement. Dated copies of pages from the electronic journal showing the advertisement can serve to satisfy the documentation requirement.

Time Frames

When must the advertisements in the newspaper or professional journals be placed?

Generally, the newspaper advertisements must be placed on two different Sundays at least 30 days, but no more than 180 days, prior to filing the application. The Sundays may be consecutive.

However, if the job opportunity is located in a rural area that does not have a newspaper that publishes a Sunday edition, the employer may use the newspaper edition with the widest circulation.

This exception applies to rural newspapers only. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area.

For journals, there is no specific edition requirement, however, the advertisement must be placed at least 30 days, but no more than 180 days, prior to filing the application.

Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?
No, while the majority of the recruitment must take place within the 30 - 180 day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.

What are the sequencing or timeframe requirements for the various additional recruitment steps?
Beyond the standard "no greater than 180 days and no less than 30 days prior to filing" there are no further timeframe requirements. The only sequencing requirement is that the two Sunday advertisements must be placed on two different Sundays which may be consecutive.

NOTE: There is one exception to the standard 30 – 180 days prior to filing timeframe: One of the additional steps required for recruitment for professional occupations may be conducted within 30 days prior to filing. However, no steps may have taken place more than 180 days prior to filing.
When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

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.
How do I count days to establish recruitment timelines and time periods as outlined by the regulation?
Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before. The same result is achieved if counting back from the day of the filing. If the application is filed on Saturday, March 3rd, the 3rd, is not counted because it is the day of the event. Friday, the 2nd, becomes day 1, Thursday, the 1st, is day 2, back to February 1st, the 30th day. Under the limitation precluding filing in the 30 days prior to the date of filing, if an application was filed on March 3, 2007, a newspaper or national journal advertisement could have been placed as late as February 1st, but no later.

Time Periods are the number of days during which an activity must take place. Examples of time periods are the requirement a job order must be placed for 30 days and the requirement that a Notice of Filing must be posted for ten consecutive business days. When counting a time period, both the start date and end date are included in the count. Thus, if a job order is on the State Workforce Agency web site from February 1, 2007, through March 8, 2007, February 1st, is day 1, February 2nd, is day 2, March 2nd, is day number 30, March 8th, is day number 36.

To determine the first date on which the application can be filed after posting a job order, the 30 day time period for the job posting and the 30 day prior to filing timeline must both be calculated. In the example we are using, March 2nd, [not March 8th] is the last day of the 30 day time period for the job order placement and is considered the event day so it is not counted in the timeline. Rather, the counting of the filing timeline starts on March 3rd, which is counted as day 1, March 4th, is day 2; etc., up until April 1st, which is day 30, the earliest possible filing date for an application. In counting backward from April 1st to February 1st, the first is only day 59, not day 60 as would be the outcome if the 30 day time period required for the job order plus the 30 day timeline restriction prior to filing were added. This is because two counting paradigms are being combined—one where the event (or start date) is counted, the other where it is not. Counting forward 60 days from the start of the 30 day job order time period does provide the correct calculation if the first day of the event is counted, as required, when counting days in a time period. To avoid mistakes, it is recommended that the time period and the timeline be counted separately.

As another example, the regulation requires a Notice of Filing posting for a time period of ten consecutive business days. If the order is posted on Monday, April 30, 2007, Monday is day 1, Friday, May 4th, is day 5; the following Monday, May 7th, is day 6; and Friday, May 11th, is day 10. May 11th, is the last day of this time period and is therefore defined as the event and is not counted when calculating the 30 day restriction prior to filing timeline. To calculate the 30 day timeline, May 12th, is day 1, May 13th, day 2, May 23rd, day 12; May 31st, day 20; and June 10th, is day 30. The application can be filed on June 10, 2007.

Examples of the earliest filing date permissible for a particular Notice of Filing posting or job order placement date are as follows:

If the Notice of Filing is posted on Thursday, June 28, 2007, the posting dates must be June 28 – July 12, and the earliest filing date permissible is Saturday, August 11, 2007, (the notice of filing must be posted for "ten consecutive business days and, therefore, neither weekends nor the Fourth of July are counted).

If the Notice of Filing is posted on Monday, August 20, 2007, the posting dates must be August 20 – August 31, 2007, and the earliest filing date permissible is Sunday, September 30, 2007