On December 6 2016 the Department of Labour (DOL) held a meeting which provided an opportunity for stakeholders to pose questions regarding the Programme Electronic Review Management (PERM) process. A wide range of topics were discussed, including the following:
- Processing times – in 2016 there was a significant slowdown in prevailing wage determinations. While requests used to take one month, a backlog of almost six months developed in the second half of the year. The DOL explained that because of limited resources, they had to transfer examiners from the permanent programme (PERM) to adjudicate temporary labour certification requests for agricultural workers. As the need for agricultural workers is seasonal, backlogs vary at different times of the year.
- Tools for prevailing wage requests – the National Prevailing Wage Centre uses the same tools as stakeholders, such as the O*NET database of occupations, information about commuting found in the metropolitan statistical areas and wage surveys. The DOL advised that attachments with documentation should not be uploaded because examiners do not have time to review the material. Instead, documentation should be summarised somewhere on prevailing wage Form 9141. Attachments would be used only if the employer asks the DOL for redetermination or reconsideration.
- Combinations of job duties – the DOL recognises that many occupations share similar duties. When this occurs, the prevailing wage should be increased to a higher level (there are four levels in all). Where an occupation has shared duties, the Office of Foreign Labour Certification (OFLC) will assign the higher of the two wages.
- Two or more PERM filings for the same job – the OFLC can detect multiple filings by searching for the name of the employer and comparing the Standard Occupational Classification (SOC) codes in their applications. The stakeholders reported that if two applications are filed for the same job, employers may expect a denial instead of an opportunity to withdraw. This is a change in policy; in the past employers normally received an opportunity to withdraw one of the duplicate applications.
- The American Competitive and Workforce Improvement Act – the act applies to prevailing wage determinations for institutions of higher education, related or affiliated non-profit entities, non-profit research organisations and governmental research agencies. Requests for prevailing wage subject to the act take into consideration the type and size of the employer and not just the type of job. Because the DOL may not always recognise that a prevailing wage request should be determined under the act, employers may place an asterisk in the title field to correspond with a written explanation regarding the act in another box.
- Prioritising adjudications – the Atlanta Processing Centre does not adjudicate applications for PERM in order of receipt. Difficult cases take more time than others.
- Unquantified special requirements and skills – specials skills are usually placed on PERM Form 9089 in Box H-14. The terminology used in H-14 often includes words and phrases such as 'knowledge of' and 'proficiency in' or similar terminology. These special requirements should be quantified, but there is no DOL guidance on this subject. The DOL has denied applications that do not include quantification, but a recent decision from the Board of Alien Labour Certification(1) held that the DOL should explain to employers how they may meet the requirement to quantify rather than deny applications for lack of guidance. In view of this decision, the OFLC has agreed to stop issuing denials and to provide guidance in the form of frequently asked questions.
- Salary range – the OFLC has often denied PERM applications where employers have listed salaries with phrases such as 'competitive salary', 'depends on experience' or 'negotiable'. Many state workforce agencies have job order templates that do not permit employers to state wage ranges in a manner consistent with the PERM rules. In Matter of Tek Services LLC(2) the board reversed a denial where the employer advertised a 'competitive salary' instead of the prevailing wage determination. Based on this decision, the DOL stated that it would approve cases that utilise salary ranges for job bank orders.
- Harmless error – although harmless error does not exist in the PERM rules, the board has carved out exceptions which in some cases may include corrections for simple, typographical errors; for example, where an employer typed the wrong date for a second Sunday advert. Both Sunday adverts were properly placed on Sunday, but one of the dates reported by the employer on the PERM form was incorrect. The DOL does not agree that changes on the form may be made to correct harmless errors. Instead, corrections may be made only after denial and appeal to the Board of Alien Labour Certification.
- Digitalised signatures – the DOL requires original signatures and does not accept electronic or digitalised versions of signatures.
- Electronic notification of PERM letters – on December 1 2016 the board began to utilise electronic notification for audits, denials, requests for information, confirmation of withdrawals and decisions from appeals, instead of hard copy notifications.
For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email ([email protected]). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.