最 近 DOL对 于 PERM的 申请有非常大的动作 。 DOL对 于 PERM申 请 过 程有不同
以 往 的 看 法 。 而且昨 天 CIS又 发出 一 个 最 新 的 AC21诠释。 我们不知道
是否与DOL对 于 PERM的 Audit有 关 。 无 论如何我们还是不得不小心 。 以下是 对
于 PERM的 一 些简要介绍 。
Employers in U.S. are required to test the domestic labor market before
seeking permanent residence for any of their foreign workers. This is done
through a process called labor certification. The prime objective of a labor
certification is to enable U.S. workers to secure employment before filling
up job positions with foreign workers. Ending the “traditional” DOL
monitored system and the Reduction in Recruitment (RIR) system, the
Department of Labor’s Employment and Training Administration (ETA), on
March 28, 2005, introduced a new procedure for labor certification called “
Permanent Electronic Review Management (PERM).” The idea behind PERM is to
speed up the certification process by reducing its processing time to
approximately 60 days.
Under PERM, an employer is required to perform specific recruitment for an
open position prior to filing a labor certification application, which can
be done either electronically or by mail using the new Form ETA 9089. The
majority of items on Form ETA 9098 consist of questions that require the
employer to check Yes, No, or NA (not applicable) as a response. It requires
the employer to describe the job and specific skills or other requirements.
The employer is required, also, to attest to the truthfulness of the
application, and need not include any supporting documentation. The employer
does have to retain, at least for 5 years, all of the supporting
documentation for the PERM application that should be made publicly
available upon request from DOL or other interested parties.
Before issuing a labor certification, the DOL shall be satisfied that: (i)
the employer has met the procedural requirements of the regulations; (ii)
there are no sufficient U.S. workers who are able, willing, qualified and
available for the job position; and (iii) the employment will not adversely
affect U.S. workers.
Determination of a Prevailing Wage
The Certification Process begins when employer submits his request for the
determination of a prevailing wage to the State Workforce Agency (SWA). The
prevailing wage determination issued by the SWA will be valid for a period
designated on the determination form, between 90 days to one year. The
employer must promise to pay the beneficiary employee 100% of the prevailing
wage from the moment that the beneficiary receives his/her Green Card. In
addition to promising a certain salary, the employer must prove its ability
to pay the promised salary as of the moment that the labor certification is
filed and a priority date is established.
Recruitment Requirements
Between 30 to 180 days prior to filing, the employers must comply with the
recruitment requirements as mandated by the regulations.
(20 CFR 656.17(e)(1)) begins with certain mandatory steps. They are:
· Placement of a job order with SWA covering the intended
employment for at least 30 days;
· Two consecutive Sunday newspaper advertisements. If the position
requires experience and an advanced degree, a professional journal
advertisement may be used in lieu of one of the Sunday newspaper ads.
· Posting of employment notification for 10 consecutive business
days at the location of employment and notification in “any and all” in-
house media.
* For professional positions, the employers must choose at least three
of the ten additional recruitment steps provided by the PERM regulations.
o Job Fairs;
o Employer’s Website;
o Job Search Website Other than the Employer’s;
o On-Campus Recruiting;
o Trade or Professional Organizations;
o Private Employment Firms;
o Employee Referral Programs with Incentives;
o Campus Placement Offices;
o Local and Ethnic Newspapers; and
o Radio and Television Advertisements.
The advertisements must direct the applicants to send their resumes to the
employer. They must contain specific information, including the employer’s
name, job location, description of the job offered and prevailing wage rate
. The job requirements must not be excessive.
Recruitment Report
Finally, the employer is required to provide a detailed recruitment report
containing: (1) Description of the recruitment steps undertaken and the
results achieved; (2) The number of hires; and (3) The number of U.S.
workers rejected, categorized by the lawful job related reasons for such
rejections.
Qualifications of U.S. Workers
The “ability to acquire the skills necessary to perform the duties involved
in the occupation during a reasonable period of on-the-job training”, is a
criterion under PERM, for determining U.S. worker’s qualification for the
position offered. Reasonable period of time is not defined as it varies in
different occupations.
Audits
PERM requires a bare submission of ETA Form 9089, attested by the employer,
without any accompanying documentation. However, the DOL will have an
authority to audit a labor certification file with or without cause. If the
employer fails to respond to the audit letter within 30 days, the CO may
order for a supervised recruitment for future labor certifications for up to
two years. After audit, the CO may require the employer to conduct
supervised recruitment or request additional information. The supervised
recruitment may be similar to the traditional labor certification process.
Grounds for the Rejection of U.S. Applicants During the Labor Certification
Process
Lack of Qualification and Ability
Not having proper qualifications or ability to perform job duties as
described in the Application for Alien Labor Certification and as defined in
items 13, 14, and 15 on Form ETA 750A is a ground for rejection of U.S.
applicant by the employer.
Inconsistencies and fraud
Inconsistencies, fabrications and fraud in the application process by U.S.
workers provide reason to reject them. Exaggeration and embellishment about
the details of their education, work experience, training, status and other
qualifications will enable the employers to reject their applications.
The employer, however, cannot reject the U.S. workers for the following
reasons:
(1) Over Qualification;
(2) Lack of fluency in English;
(3) Alien worker is more qualified than the U.S. worker. If minimum
qualifications prescribed by the employer is possessed by a worker, he is
deemed to have qualified for the job;
(4) Lack of experience in other than key duties is not a ground for
rejection;
(5) Mere assumption that an applicant would not be willing to relocate.
Additional Information
PERM retains the concept of “Business Necessity”, which allows employers
to exceed the specific vocational preparation (SVP) level under the O* NET
Job Zones, and also justify foreign language requirements.
Employer’s ability to justify a combination of occupations is retained
under PERM.
Finally, PERM allows employers to specify alternative requirements all at
once.
Conclusion
PERM is a highly regulated process during which the employer must adhere to
the rules in order to avoid future problems in filing labor certifications
with DOL and other financial penalties. Recently a large immigration law
firm was suspected in interfering during the PERM recruitment process, which
in turn led to the DOL announcing an audit of all cases, filed by that firm
. It is clear that although the PERM process may seem simple and flexible,
in fact it is not. We highly recommend that employers retain counsel when
going through the PERM process and make every effort to follow instructions
closely.
If you have any questions about the PERM process, please do not hesitate to
contact our experienced attorneys at 301-251-2636 or e-mail your questions
to lawyer@fan-law.com.
本文由范毅禹律师事务所提供
本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，
劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处
理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢
迎读者流览查询。
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