Articles Posted in PERM

amphitheather-667182-m.jpgUniversity and college teachers and professors may have access to an easier and faster path to PERM labor certification by taking advantage of a unique process known as special handling, which provides for a special selection and recruitment process that is unique to university and college teachers. Although teachers and professors can of course use normal PERM processing, the special handling process has several advantages over the normal process.

During a normal PERM application recruitment process, if a job application is filed by a US applicant who meets the minimum requirements for the position, this is a problem that puts the whole labor certification in jeopardy because the US Department of Labor (DOL) will deny certification when a qualified US applicant is available to fill the position.
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coffee-in-the-air-607702-m.jpgOne major purpose of the regulations that control the PERM recruitment process is to prevent potential US job applicants from being misled about the actual job requirements and discouraging them from applying for the job. According to federal regulation, PERM recruiting advertisements cannot have job requirements or duties that exceed the job requirements or duties on the form 9089 PERM application. Given this rule, one would think that advertisements with less strict job requirements or duties would not be a problem. However, this is not necessarily the case. Failure to use the same language on both documents may inevitably result in a denial anyway.

This is demonstrated by the decision in the BALCA case of In the Matter of IBM Corporation, decided August 27, 2013. The employer in this case published an advertisement as part of its PERM recruitment process for the position of senior management consultant. The job requirements contained in the advertisement were less restrictive than those on the PERM application Form 9089. The employer’s position was that the regulation prohibits the requirements of the advertisement from being more restrictive, not less restrictive.
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bullseye-706544-m.jpgThe labor certification process is extremely complex and requires very strict attention to detail. So much so that even a small and seemingly trivial mistake can cause the entire application to be denied. Many facets of the permanent employment certification (PERM) application must be absolutely perfect. It may not be enough for an attorney to have a complete mastery of the vast amount of complicated and seemingly convoluted law that controls whether a PERM should be approved or denied. Even when it seems the entire application and process were conducted perfectly, one small mistake that was missed can easily surface and destroy the entire project.

Once a mistake is made during the PERM process, there is likely no chance to go back and fix the error. Usually the only real way to fix it is to start all over again from the very beginning, which can be disastrous for the employer and employee. Especially when the employee’s H-1B visa status will expire soon.
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note-1267044-m.jpgA recent BALCA court case indicates that a PERM application may be denied if the employer fails to maintain some evidence of where the Notice of Filing was posted that may be submitted to a USDOL Certifying Officer in response to an audit request. The court held that although the NOF itself is not required to contain the posting location, there must be some other evidence of the location in addition to the employer’s attestation on the PERM application.

The US Department of Labor Board of Alien Labor Certification Appeals Court (BALCA) recently decided in the case In the Matter of Redyk Travel (Case No. 2011-PER-02738), that a PERM is subject to denial when the employer fails to disclose the posting locations of the Notice of Filing (NOF).
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calendar-series-3-544231-m.jpgThe PERM regulations are full of minute detail that an employer must completely adhere to throughout the entire PERM application process. If an employer fails to comply with even one seemingly small detail, the application is to be denied, and the employer is given no second chances or opportunities to go back and repair the error.

When an employer files an application for permanent labor certification (PERM), Federal regulations require that the employer first provide notice to its employees that it will file the application. This notice is called a “notice of filing” (or NOF). The regulation requires the employer to post the NOF for at least 10 consecutive business days at the place of employment, for a time period between 30 and 180 days before filing the PERM application. Failure to do so will result in the application being denied.
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126593_newspaper.jpgAn application for permanent labor certification (PERM) must be preceded by specific job recruitment steps that the employer is required to perform, according to the Code of Federal Regulations. Regulations require that advertisements placed by the employer in newspapers of general circulation or professional journals, as part of the required PERM job recruitment process, must not contain any job requirements or duties that exceed the job requirements or duties listed on the PERM application form ETA 9089. A violation of this regulation is justification for denial of the PERM application.

The US Department of Labor Board of Alien Labor Certification Appeals (BALCA) recently decided a case that discussed whether this regulation also applies to job orders, in Matter of Chibad Lubavitch Center, BALCA Case No. 2011-PER-02614. In this case, the employer, Chabad Lubavitch Center, posted the required job order at the New York State work force agency (SWA) that contained as a job requirement the experience level of “mid-career (2-15 years),” but the ETA 9089 form PERM application listed the experience requirement as 24 months.
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file000103102419.jpgAdvertisements published for the purpose of recruiting for PERM labor certification are required to disclose the geographic location of the employment. Yet, advertisements are not required to list the actual street address of the worksite. Suppose that the foreign worker is working from his or her home as the worksite address. May the employer simply advertise the city and state of the worksite, or must the employer disclose that the position involves working from home? After all, regulations state that the requirement to disclose the amount of travel required for the job is satisfied when the advertisement simply lists the city and state of job location.

This issue was resolved in a recent case decided by the Board of Alien Labor Certification Appeals (BALCA) in the matter of Siemens Water Technologies Corp. 2011-PER-00955, decided July 23, 2013.
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126593_newspaper.jpgDuring the Application for Permanent Employment Certification (otherwise known as PERM), is imperative to carefully draft the language used in the advertisements and job postings. This was underscored by the Board of Alien Labor Certification Appeals (BALCA) in its recent decision on February 6 that affirmed the denial of PERM certification due to the way the advertisement was drafted, in the matter of Oracle America, Inc.

Originally, the Certifying Officer (CO) denied the employer’s PERM application because of the language used in the Notice of Filing (NOF), otherwise known as the internal job posting, BALCA affirmed the CO’s denial holding that the job posting contained a job requirement that was not indicated in the ETA Form 9089.
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1282502_magnifying_glass.jpgIn the adjudication of permanent labor certification cases, the US Department of Labor (DOL) said that it will increase its scrutiny of PERM applications even further by conducting more integrity checks, meaning more audit investigations and more supervised recruitment. The DOL’s current objective is to conduct integrity checks on 30% of all PERM applications it receives. The DOL uses two methods for conducting integrity checks: audit investigations and supervised recruitment.

Audits Investigations Continue reading

1057625_diagram.jpgThe US Department of Labor (DOL) now audits almost half of the PERM labor certification applications that it receives. PERM audits have increased since the DOL announced that it has moved its attention away from trying to reduce its backlog and has put more attention toward checking and verifying the integrity of PERM applications.

A PERM application can frequently trigger an audit even when the application does not contain any errors or omissions. This is because the DOL has the discretion to select any PERM case for audit merely on the basis that it wants to conduct a closer review of the application and verify its accuracy.
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