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Before
the Department of Homeland Security (DHS) may approve
petition
requests and the Department of State (DOS) may issue visas and
admit certain immigrant aliens to work permanently in the United
States,
the Secretary of Labor must certify to the Secretary of State and to the
Secretary of Homeland Security:
(a)
There are not sufficient United States workers who are able,
willing, qualified, and available at the time of the application for a
visa
and admission into the United States and at the place where the
alien
is to perform the work; and
(b)
The employment of the alien will not adversely affect the wages
and
working conditions of similarly employed United States workers. 8
U.S.C.
1182(a)(5)(A).
If
the Secretary of Labor, through the Employment and Training
Administration
(ETA), determines there are no able, willing, qualified,
and available U.S. workers and employment of the alien will not
adversely
affect the wages and working conditions of similarly employed
U.S.
workers, DOL so certifies to the Department of Homeland Security
and
to the Department of State by issuing a permanent alien labor
certification.
If
DOL can not make both of the above findings, the application for
permanent
alien employment certification is denied.
The
process for obtaining a permanent labor certification has been criticized
as being complicated, time consuming, and requiring the
expenditure
of considerable resources by employers, State Workforce
Agencies
and the Federal government. The US Department of Labor has been working on
re-engineering of the labor certification process since sometime in 1999
and release the final PERM rule on December 27, 2004, to replace the
existing labor certification process on March 28, 2005.
The
new system is designed to streamline processing and ensure the most
expeditious processing of cases, using the resources available.
The
new PERM system requires employers to conduct recruitment before
filing
their applications. Employers are required to place a job order
and
two Sunday newspaper advertisements. If the application is for a
professional
occupation, the employer must conduct three additional
steps
that the employer chooses from a list of alternative recruitment
steps
published in the regulation. The employer will not be required to
submit
any documentation with its application, but will be expected to
maintain
the supporting documentation specified in the regulations. The
employer
will be required to provide the supporting documentation in
the
event its application is selected for audit and as otherwise
requested
by a Certifying Officer.
This
final PERM rule also provides employers with the option to submit
their
forms either electronically or by mail directly to an ETA
application
processing center.
The new form--Application for Permanent Employment
Certification
(ETA Form 9089)--has been designed to be completed in a
web-based
environment and submitted electronically or to be completed
by
hand and submitted by mail.
To
accommodate electronic filing, a complete application will
consist
of one form. The new form, ETA Form 9089, will contain
additional
``blocks'' to be marked by the employer to acknowledge that
the
submission is being made electronically and that information
contained
in the application is true and correct. We have developed a
customer-friendly
Web site that can be accessed by employers to electronically fill outand
submit the form. The Web site includes detailed instructions,prompts, and
checks to help employers fill out the form. 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 they file. 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 have to enter only the data specific to the
application
at hand.
Electronic
submission and certification requires ETA Form 9089 be
printed
out and signed by the employer immediately after DOL provides
the
certification. A copy of the signed form must be maintained in the
employer's
files, and the original signed form must be submitted to
support
the Immigrant Petition for Alien Worker (DHS Form I-140).
The
employer will not be required to provide any supporting
documentation
with its application but must maintain and, when
requested
by the Certifying Officer, furnish documentation to support
its
answers, attestations and other information provided on the form.
The
standards used in adjudicating applications under the new system
will
be substantially the same as those used in arriving at a
determination
in the current system. The determination will still be
based
on: whether the employer has met the procedural requirements of
the
regulations; whether there are insufficient U.S. workers who are
able,
willing, qualified and available; and whether the employment of
the
alien will have an adverse effect on the wages and working
conditions
of U.S. workers similarly employed.
But
the employer will be required to keep the supporting documents for five
years for possible future auditing. US DOL is concerned about the
potential for fraud, misrepresentation, and non-meritorious applications in
an attestation-based system. Some, but not all, of the measures have taken
to minimize these problems, include: a review of applications, upon
receipt, to verify the existence of the employer and to verify the
employer has employees on its payroll, and the use of auditing techniques
that can be adjusted as necessary to maintain program integrity.
State
Employment Agencies (SWAs) will no longer be the intake point for
receipt of applications for permanent alien employment certification and
will not be required to be the source of recruitment and referral of U.S.
workers as they are in the current system. The required role of SWAs in
the redesigned permanent labor certification process will be limited to
providing prevailing wage determinations (PWD). Employers will be required
to obtain a PWD from the SWA before filing their applications with DOL.
The
SWAs will, as they do under the current process, evaluate the
particulars
of the employer's job offer, such as the job duties and
requirements
for the position and the geographic area in which the job
is
located, to arrive at a PWD.
The
combination of pre-filing recruitment, providing employers with
the
option to complete applications in a web-based environment,
automated
processing of applications including those submitted by mail,
and elimination of the SWA's required role in the recruitment process
will
yield a large reduction in the average time needed to process
labor
certification applications. The redesigned system should also
eliminate
the need to institute special resource-intensive efforts to
reduce
backlogs, which have been a recurring problem.
After
ETA's initial review of an application has determined that it
is
acceptable for processing, a computer system will review the
application
based upon various selection criteria that will allow
problematic
applications to be identified for audit. Additionally, as a
quality
control measure, some applications will be randomly selected
for
audit without regard to the results of the computer analysis. DOL
has
incorporated identifiers into the processing system, which are used
to
select cases for audit based upon program requirements. In some
instances,
DOL will be confirming specific information with employers.
If
an application has not been selected for audit, and satisfies
all
other reviews, the application will be certified and returned to
the
employer. An electronically filed application not selected for audit will
have a computer-generated decision within 45 to 60 days of the date the
application was initially filed. The employer must immediately sign the
application and
then
submit the certified application to DHS in support of an
employment-based
I-140 petition.
If
an application is selected for audit, the employer will be
notified
and required to submit, in a timely manner, documentation
specified
in the regulations to verify the information stated in or
attested
to on the application. Upon timely receipt of an employer's
audit
documentation, it will be reviewed by ETA personnel. If the
employer
does not submit a timely response to the audit letter, the
application
will be denied. If the audit documentation is complete and
consistent
with the employer's statements and attestations contained in
the
application, and not deficient in any material respect, the
application
will be certified the employer will be notified. If the
audit
documentation is incomplete, is inconsistent with the employer's
statements
and/or attestations contained in the application, or if the
application
is otherwise deficient in some material respect, the
application
will be denied and a notification of denial with the
reasons
therefore will be issued to the employer. However, on any
application,
the CO will have the authority to request additional
information
before making a final determination.
The
CO may also order supervised recruitment for the employer's job
opportunity,
such as where questions arise regarding the adequacy of
the
employer's test of the labor market. The supervised recruitment
that
may be required is similar to the current regulations for
recruitment
under basic processing, which requires placement of
advertisements
in conjunction with a 30-day job order by the employer.
The
recruitment, however, will be supervised by ETA COs instead of the
SWAs.
At the completion of the supervised recruitment effort, the
employer
will be required to document in a recruitment report the
outcome
of such effort, whether successful or not, and if unsuccessful,
the
lawful job-related reasons for not hiring any U.S. workers who
applied
for the position. Upon review of the employer's documentation,
the CO will either certify or deny the application.
In
all instances in which an application is denied, the
notification
will set forth the deficiencies upon which the denial is
based.
The employer will be able to seek administrative-judicial review
of
a denial by the Board of Alien Labor Certification Appeals (BALCA).
Above
is only a brief summary of the new PERM system that will become effective
on March 28, 2005. During the whole PERM process I will work closely with
the employer as the agent for the employer even though the employer is not
paying for the legal service. Although I will do most of the work to
complete the process for the alien employee, I am not permitted to make
the decision for the employer in some instances or take over the job the
employer is required to do during the PERM process. More
specifically the employer must conduct the recruitment activities after
the advertisements are placed. For example as the attorney or agent,
I cannot do the screening or interviews on the employer's behalf; I cannot
instruct the applicants to send resumes or applications to my office, etc.
However I will provide legal assistance to the employer as the law
permits. Please feel free to contact
me if the employer has any questions regarding the process.
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