PERM Update: Common Mistakes Made by Employers

Common Mistakes regarding ETA Form 9089

  1. Typos

One of the most common mistake employers make when completing the ETA Form 9089 is not double checking that every single piece of information they have supplied is correct. The ETA Form 9089 is submitted online on the DOL website, making typos more likely. The DOL will deny ETA Form 9089s for what may seem like trivial typos, such as spelling mistakes in the employer’s name or the foreign worker’s home address. Any of these type of mistakes, not matter how trivial, can result in denial from the DOL.

  1. Failure to Include All Requested Information

Another common mistake occurs when employers fail to include the alien’s past and present work supervisors on the ETA Form 9089. Pages 6 through 8 (and more if additional space is required) of the ETA Form 9089 ask for the alien’s work experience information, including name of the employer, dates of employment, duties performed, job title, skill sets/licenses used, and the phone number and name of the alien’s supervisor. For whatever reason, employers regularly forget to include the name and phone number of the alien’s supervisor. The DOL will deny an ETA Form 9089 that fails to include this information, so the employer should be sure to include these details for all of the alien’s present and past work experience.

  1. Failure to Respond to Emailed DOL Questionnaire

After the employer electronically submits the ETA Form 9089 to the DOL, the employer will receive an email from the DOL to the email address that the employer provided on the form. This email will contain a link to a simple questionnaire that basically seeks to confirm that the employer knowingly filed the ETA Form 9089 and that the submission wasn’t a result of a computer hacker, spam, and so forth. If the employer fails to complete this questionnaire within seven days of receiving it, the DOL will deny the case. For this reason, it is very important that the employer completed the DOL questionnaire within one week of receiving it.

Common Mistakes in regards to the Prevailing Wage Determination

  1. Validity Dates

Another mistake involves failure to begin recruitment or file the application within the validly period of the PWD. Once an employer receives the PWD, they should check the validity of the determination. If the determination is issued between the start of July and the end of March of the following year, the PWD should be valid until June 30. If the PWD is issued between April 1 and June 30 of the same year, it should be valid for 90 days only.

Common Mistakes regarding Job Requirements

  1. Real World v. PERM Requirements

One mistake commonly made by employers during the recruitment process  is the use of real world requirements instead of PERM requirements. In the real business world, most employers recruit competitively, seeking the most qualified candidate for their open positions. In the world of PERM, however, DOL regulations require employers recruit based on the true minimum requirements for the job- this means minimum education, training, and experience rather than the preferred education, training and experience. Employers should be aware of this distinction and adhere to the PERM requirements to avoid this mistake.

  1. Consideration of Candidates

Another job requirement related mistake involves the consideration of candidates. When considering applicants for the offered position, the employer must consider applicants only against the specified requirements for the job opportunity, such as the minimum educational degree, years of employment experience, specific job-related skills and knowledge (e.g., programming languages). If certain job-related skills could be learned during a “reasonable” period of on-the-job (OTJ) training, candidates lacking those skills must be considered qualified for the job opportunity. If these candidates are not considered qualified, the employers PERM application may be denied.

Common Mistakes Made in Recruitment Process:

  1. Timeliness

PERM requires that the employer complete all of the required recruitment steps during the 180 days prior to filing the application with DOL. The “mandatory” recruitment steps (published newspaper advertisement, job order, and notice of filing an application for labor certification) for all PERM applications must take place at least 30, but no more than 180, days before filing the application with DOL. Employers should make sure they are mindful of  these time limits.

  1. Advertising Mistakes: Sunday Papers

Another common mistake often made by employers stems from the Sunday ads requirement of the PERM process. Employers must place two consecutive Sunday advertisements in the newspaper of general circulation in the area of the job opportunity. Common mistakes that arise from this requirement include placing one ad on a Sunday and another ad on a different day or placing the ads on two Sundays but failing to place them on consecutive Sundays.

  1. Advertising Mistakes: Correct Newspaper
Another mistake involves failure to choose the correct newspaper of general circulation. Employers should make sure when choosing a newspaper, they choose the paper of general circulation in the area of the specific job opportunity. 

Other PERM Related Mistakes

  1. PERM Costs & Fees

Another mistake involves who pays for the PERM application. An amendment to the PERM regulations in 2007 put restrictions on who can pay for a PERM application.  The regulation requires that the petitioning employer rather than the beneficiary pay the costs associated with filing and obtaining an approved labor certification application, including the payment of attorney’s fees when the same attorney represents both the sponsored beneficiary and the employer.

  1. Proper Documentation

One responsibility of the PERM process, which is commonly overlooked, is the responsibility to retain all of the PERM documents at the employer’s office location for a period of five years. At a minimum, employers must retain the prevailing wage determination (PWD), originals of all advertisements that were placed for the position (such as original newspapers that contain the Sunday advertisements and printouts from Web advertisements), and all of the resumes the employer received for the job opportunity. These documents must be maintained at the employer’s location for a period of five years from the date of the employer’s submission of the ETA Form 9089. If employers fail to comply with this critical responsibility, they can face serious fines, penalties, or other consequences.

Employers should be mindful that the DOL can revoke the certification for up to five years after approval.  If revocation is sought, this decision can be challenged and appealed through the Administrative Law Judges at DOL. For this reason, it is very important to keep any all documentation during the PERM Process.

  1. Audits

In some cases, the employer will receive an audit letter in response to their PERM application. If the employer does not respond to the audit letter within the 30 day time-limit, the case will be automatically denied. To avoid automatic denial, employers should be especially on notice of this 30 day time limit.