In a recent case, the Board of Alien Labour Certification (BALCA) agreed that the requirement to provide a signed copy of a Programme Electronic Review Management form was reasonable and that failure to provide a complete copy would usually constitute a substantial failure. However, since the failure to submit an original, completed form in this case appeared to be an electronic error, BALCA decided that the omission was not material and ordered approval for the employer.
The US Department of Labour recently issued two denials of Programme Electronic Review Management certification to Apple, the first US company with a market value of more than $700 billion. Denial in the first case was based on a clear typographical error, while the second was based on a subtle interpretation of the foreign worker's educational qualifications.
In a nation of immigrants, the government struggles to determine which persons should be permitted to remain and which persons should be returned to their home country. Employers that seek labour certification to employ foreign workers must prove that they have not found suitable US workers who are qualified, willing, able and available for employment.
A little-known requirement in the Programme Electronic Review Management rule states that employers must offer to train job applicants if they can acquire the education, training, experience and skills necessary to perform the required duties in a reasonable period. While deference is given to the employer, whose judgement is the best arbiter of such matters, government policy regarding the required duties themselves is ambiguous.
The Department of Labour recently held a meeting which provided an opportunity for stakeholders to pose questions regarding the Programme Electronic Review Management process. A wide range of topics were discussed, including processing times, tools for prevailing wage requests, combinations of duties, prioritising adjudications, unquantified special requirements and the American Competitive and Workforce Improvement Act.
The Department of Labour has long held the position that employers should not recruit for jobs requiring special skills or licences if US workers are available who could be easily trained. To defend the special skill requirement successfully, employers generally argue that job applicants did not list these skills on their résumés and that it would not be feasible for them to acquire the skills through on-the-job training.
When Programme Electronic Review Management applications are denied, employers can file requests for reconsideration. If a request for reconsideration is denied, employers can still file an appeal to the Board of Alien Labour Certification Appeals (BALCA) within 30 days. In addition to the timely filing requirement, employers must carefully state the grounds for the appeal. A BALCA directive advises that appeals may be dismissed if the grounds do not contain sufficient detail.
In a recent case an employer used a private employment agency to place an ad for professional recruitment. The agency put its own name in the ad and not the name of the employer; as a result, the Department of Labour denied the Programme Electronic Review Management application.
The Department of Labour has issued a series of decisions explaining what happens when an employer claims that it never received a national Programme Electronic Review Management (PERM) office audit letter. In view of the difficulty in proving that an audit letter has not been received, employers should monitor their PERM case status and save online reports as proof in case of future disputes.
The US Department of Labour holds regular stakeholder meetings to discuss technical issues with employers, bar associations, student advisers, unions, government agencies and other interested groups. At a recent meeting, questions were raised about prevailing wage determinations for job offers involving combinations of occupations.
The Programme Electronic Review Management rule requires that a job's travel requirements be included in newspaper ads, but there is no guidance pertaining to different kinds of travel, such as that required of high-tech workers. The Department of Labour has recently argued that 'travel' and 'relocation' should be differentiated, which breaks with the longstanding tradition of assimilating all kinds of assignment under the definition of 'travel'.
While the Programme Electronic Review Management process contains detailed instructions for what must be included in a newspaper ad, there is no rule pertaining to professional occupation ads placed elsewhere, such as online. Most employers tend to play it safe and follow the rules for newspaper ads. However, in recent years the Board of Alien Labour Certification Appeals appears to have liberalised the rules for online ads.
The Department of Labour recently held a meeting in Washington DC to discuss hot issues in Programme Electronic Review Management (PERM) processing. The agenda included prevailing wages, Programme Electronic Review Management and temporary work visas. Reports of stakeholder meetings provide an early warning system for employers to keep on the cutting edge of new developments in PERM.
Programme Electronic Review Management Form 9089 and the supporting documentation must be signed by a number of different persons and failure of the right person to sign in the right place often results in denial. The likelihood of this is increased by the ambiguous definitions of these persons, such as the term 'employer' on Form 9089 which has two different meanings on the same form.
A recent case demonstrates the confusion among employers as to the date on which a Programme Electronic Review Management application must be filed; the law states that it must be filed both "within 180 days" of completing the advertising and recruitment campaign and "within six months". There is also confusion around whether this period starts on the date on which the application is sent or the date on which it is delivered or received.
The Department of Labour has broad powers to revoke Programme Electronic Review Management (PERM) approvals and sister agencies can also invalidate labour certifications, which can lead to the loss of a green card or even citizenship. The best preventive remedy is to process all PERM applications carefully to obtain long-lasting approvals, and review past cases to see whether a notice of revocation might be imminent.
Despite the promise of efficient processing, the high-tech PERM system has confounded employers due to its complexity and inconsistencies, and has also resulted in countless undeserved denials. With many of the important rules and policies flying under the radar, employers have no one-stop shop to learn the process.
The Department of Labour continues to struggle with distinctions in advertising requirements for the Programme Electronic Review Management recruitment process, to the consternation of employers and attorneys. At issue is the fact that there are different rules for ads placed in newspapers of general circulation, ads for professional positions and job orders that are placed with state workforce agencies.
US Citizenship and Immigration Services recently issued a draft memo that provides definitions and interpretive guidance for Programme Electronic Review Management and certain other employment-based applicants who port to new employment when they are in the adjustment of status period for 180 days or more.
In a recent administrative law decision a Programme Electronic Review Management application for a computer programmer was denied because the employer did not provide the Department of Labour with copies of the emails that it had sent to job applicants. The decision turned on the employer's efforts to submit material documentation after the audit by means of a request for reconsideration.
Most foreign-born IT employees work in the United States on H-1B temporary visas prior to qualifying for permanent residency. These workers need a PERM application (labour certification) before an I-140 immigrant visa petition can be filed on their behalf. There are several important time periods and deadlines to keep in mind throughout the PERM application process.
Most IT personnel want to apply for the US second preference employment-based category because the third preference is subject to long delays. Success in applying for second preference lies partly in the applicant's level of expertise and partly in the applicant's qualifications. It is also possible to qualify for second preference because of exceptional qualifications, even without a bachelor's or advanced degree.
The US Office of Foreign Labour Certification for permanent workers has issued a mid-year report for 2014. The report covers the top countries providing workers to the United States for classification as permanent residents, the top five occupations and the most popular employment destinations. It also highlights common errors that result in applications being denied, including failure to follow PERM procedural rules.
To file a PERM application, the employer must first determine the proper job code according to the O*Net classification, including permissible characteristics such as title, duties, experience, education, training and other special requirements. Job zone selection is an important issue, because it determines whether a PERM application may be used to file for a third preference or second preference employment-based petition.