On February 23 2016 the Department of Labour held a meeting in Washington DC to discuss hot issues in Programme Electronic Review Management (PERM) processing. The agenda included prevailing wages, PERM and temporary work visas.
Delays in processing wage determinations now exceed 60 days, which was the norm for many years. The Department of Labour explained that more cases are being filed, while at the same time funding has been reduced. Occasional technical problems have also created backlogs.
PERM has been touted as a streamlined, electronic process, yet delays have developed as the agency began to conduct audits of applications and request a great deal of documentation. To speed things up, the Department of Labour has removed some of the items from the audit list. The simplified list is just going into use, but the first item to go will be requests for unnecessary supporting documentation.
Responses to Department of Labour audits, and in general all mailings to the department, should never be bundled in one courier package. To ensure proof of proper delivery, only one case at a time should be sent with its own specific tracking information.
The Department of Labour clarified when the prevailing wage unit will assign the occupation of "Software Developer, Applications" (O*Net Code 15-1132) or "Software Developer, Systems Software" (O*Net Code 15-1133). The first occupation code should be used when the job involves the development of computer software and utility programs with which the consumer interfaces. The second should be used when working with different operating systems or assembling programming languages.
Employer suggestions to the prevailing wage offer should be made on Form 941 and supporting documentation is best considered when it appears on the form as opposed to being uploaded. This came as a surprise to some practitioners, who have routinely been providing explanatory wage material as attachments. Accordingly, all information should be provided on Form 9141.
In a few cases, information on the PERM form has disappeared, resulting in denials. The employers in question were sure that they included the information of the foreign worker's qualifications in Part K, but after electronic transmittal the Department of Labour received the form without Part K filled out. The department is sure that this is the result of a technical problem with the employers' software and not a problem with its own.
Free housing, if provided, should be listed in the advertising, since it should be offered to US job seekers – not only to the foreign worker.
Finally, as has been reported in the past, special skills, licences, certificates, languages and the like should be listed as requirements, usually in H-14 (although some of these may be embedded in the job description); but of paramount importance is to list them in Part K where the foreign worker's qualifications are shown. The form uses Part K to demonstrate prior employment and not the acquisition of skills; but there is no other place on the form, so Part K should be used. The Department of Labour suggests that the skill be indicated during the time period in one of the boxes in Part K, either individually or together with another entry in the same box. Extra space is available to put information on addenda pages at the end of the form.
Reports of stakeholder meetings provide an early warning system for employers to keep on the cutting edge of new developments in PERM.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (firstname.lastname@example.org). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.