The Nuts and Bolts of PERM Labor Certification

Introduction: What is PERM

  • On December 27, 2004, the U.S. Department of Labor (“DOL”) published new permanent labor certification application regulations.
  • These regulations implemented DOL’s Program Electronic Review Management (PERM) system. PERM introduced electronic filing of a simpler, attestation-based form, and initially raised (and met) expectations of both employers and individuals that lengthy processing times at DOL would finally improve.
  • The PERM regulations became effective on March 28, 2005.
  • Why PERM is needed? To protect U.S. workers. The employer must conduct recruitment of U.S. workers for the job being offered.
PERM Steps and Requirements
  • Understanding the requirement and Drafting the position
    • The employer must obtain a prevailing wage determination (PWD) from the DOL and it must be valid when recruitment is done or when the PERM application is filed with DOL.
    • The employer must complete the necessary recruitment steps during the 180 days prior to filing the application with DOL.
    • The employer may file the application either electronically or by mail with DOL. Only the DOL form must be filed; no supporting documentation is submitted with the original application.
    • After initial review of the form, DOL will either certify, deny, or issue an audit letter on the application.
    • Following certification, the employer and alien must immediately sign the certified PERM to validate it.
    • The certified PERM application is valid for 180 days after approval, unless the employer submits it to U.S. Citizenship and Immigration Services in support of an I-140 Petition.  If an I-140 is filed while the PERM is valid, the PERM is valid indefinitely.
    • Employers must maintain supporting documentation for the PERM application for a period of five years.
    • 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.

 

Prevailing Wage Determination (PWD)

  • PERM requires employers to offer 100% of the prevailing wage rate for the position being certified.
  • Prior to filing the PERM application with DOL, the employer must obtain a prevailing wage determination (PWD) from DOL documenting the prevailing wage rate for the position on the PERM application.
  • PWDs will be valid for at least 90 days, and for not more than 365 days, after they are issued.
  • Once you receive the PWD, you 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. DOL limits the validity period of springtime PWDs because new OES wage date is updated every year on July 1.
  • The validity date is very important. The employer must begin recruitment or file the application within the validity period of the PWD.
  • Since recruitments must take place within 180 days of filing the application, and often can take up to 180 days, the employer may elect to begin recruitment prior to obtaining the PWD. However, if the employer starts recruitment before obtaining the PWD, the PWD is not valid after its expiration date.

 

Job Requirements under PERM

  • Generally, PERM specifies that the employer’s job requirements on the PERM application must not exceed the Standard Vocation Preparation (SVP) level for the occupation as defined by DOL. PERM specifies that DOL use the Standard Occupational Codes (SOC) to determine the maximum amount of education, experience and training to be required.
  • Employers can include requirements that exceed the SVP, if the employer can document that such requirements are justified by business necessity. Doing so requires:
  •  Demonstrating that the minimum requirements are bona fide; that they bear a reasonable relationship to the occupation; and the requirements are essential to perform the job in a reasonable manner.

 

Real World” Job Requirements v. PERM Job 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.
  • Importantly, PERM job requirements should not exceed the norm for  the occupation or it would be considered unduly restrictive for U.S workers to qualify by DOL.

 

Recruitment under PERM

  • PERM requires that the employer complete all of the required recruitment steps during the 180 days prior to filing the application with DOL.
  • DOL requires “professional” positions to complete additional recruitment steps. Generally, a “professional” occupation is one in which completion of at least a bachelor’s degree is normally required for entry into the field.  Even if the employer does not require a bachelor’s degree on the PERM application, if the occupation normally requires a bachelor’s degree, it will be considered a “professional” position and the additional recruitment steps are required.
  • The “mandatory” recruitment steps for all PERM applications must take place at least 30, but no more than 180, days before filing the application with DOL.
  • The Following 3 Steps are required for all PERM Cases:
        • Newspaper Advertisement:
          • A company is required to place 2 Sunday newspaper ads and conduct 3 additional recruiting steps, which can be simplified by using the 2+3 formula
          • The primary 2 ads must be 2 Sunday ads in the local newspaper with the most appropriate  and with a wide circulation for the job opportunity or 1 of the Sunday ads can be replaced with an ad in a professional journal “most likely to bring responses from able, willing, qualified and available U.S workers.”
        • What Kind of Newspaper?
          • BALCA Rejects Employer’s Use of Washington Examiner  but held that the Washington Post is a major U.S. paper, BALCA held that though the Examiner might have a wide circulation, the employer failed to show it was the most appropriate  and with a wide circulation for the job opportunity. (Matter of Intercontinental Enterprises, 7/30/12)
          • The BALCA held that the Wall Street Journal is a newspaper of general circulation, not a professional journal, and an ad that was not run on a Sunday cannot be used in lieu of the mandatory Sunday ads under 20 CFR §656.17(e)(1)(i). (Matter of Discovery Networks, 1/4/12) AILA Doc. No. 12010562.
        • Additional Recruitment Methods (Select a Combination of 3)
          • Job Fairs
          • Employer’s Website
          • Job Search Website other than Employer’s
          • On-Campus Recruiting
          • Trade of Professional Organization
          • Private Employment Firms
          • Employee Referral Program with Incentives
          • Campus Placement Offices
          • Local and Ethnic Newspapers
          • Radio and Television
      • State Job Order (SWA)
        • The employer must place a 30 day job order with the State Workforce Agency (SWA) serving the area of intended employment. The start and end dates of the job order must be stated on the PERM application.
      • Notice of Filing an Application for Labor Certification
        • The employer must provide notice to its employees that it is filing a PERM application for the job opportunity.
        •  If the occupation is unionized, the formal Notice must be provided to the bargaining representative. If there is no bargaining representative, the Notice must be posted at the employer’s worksite in a conspicuous location for ten (10) consecutive business days.
        •  In addition, the employer must distribute the Notice through “any and all in-house media” normally used by the employer to recruit for similar positions.

Preparing Recruitment Results

  • In addition to completing the mandatory recruitment process, employers must document the results of the recruitment to demonstrate that the employer was unable to locate any qualified U.S. workers for the offered position.
  • 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.

 

Other PERM Issues

  • Layoffs:
    • The PERM form (ETA 9089) includes an attestation that asks whether the employer has laid off any employees in the occupation, or in a related occupation, within the past six months. If the employer has laid off workers in the occupation within the past six months, the employer must attest whether it contacted and considered these workers for the job on the PERM application.
  • Foreign National ownership interest/Familial relationship:
    • DOL has long been concerned about the bona fides of a job opportunity if the sponsored foreign national is a key employee of the employer, is related to the employer, or is so closely involved with the employer that it is unlikely that the sponsored position would be truly “open” to U.S. workers.
  • Fraud Penalties:
    • In 2007, DOL amended its regulations to address fraud concerns with the labor certification process.  Under the revised regulations,  DOL has the authority to debar employers, attorneys and agents from filing labor certifications if DOL determines that certain violations have occurred.

 

PERM Costs & Fees

  • 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.
  • The employer is also prohibited from receiving any payment as an incentive or inducement to filing the labor certification application. At present, there is no filing fee to submit a PERM application to DOL.
  • DOL has indicated that it would like to charge a fee, but they only plan to impose a fee if they can get specific legislation passed that would allow DOL to retain the fees to run the labor certification program

 

What Happens to PERM Applications after Filing?

  • DOL processes most PERM applications filed electronically within 3-12 months of submittal.
  • The initial review and intake of the PERM application is completed by an automated system at DOL. Cases are then assigned to an analyst for final review.
  • If a PERM case is denied, the employer may appeal the denial to BALCA or request reconsideration from the Certifying Officer.  PERM appeals may take two years or more to be processed.
  • If the employer does not respond to the audit letter within the 30 day time-limit, the case will be automatically denied.

Current Trends in Audits: Board of Alien Labor Certification (BALCA)

  • Alien Ownership/Familial Relationship:
    • Matter of Nextabs, Inc. (May 7, 2012): Alien was the cousin to the CEO of employer and one of five executive level managers in company with 33 employees- although alien had no investment interest in the firm, presumption of alien’s influence and control was not overcome by employer. The CO’s denial was affirmed
  • Verification of Employer Sponsorship
    • Matter of Park Ave. Mini Market (Feb. 21, 2012): CO said employer didn’t verify sponsorship and employer submitted attestation that he had never been contacted and that if he had, he would have verified sponsorship. Evidence was found credible. ( CO’s actions in the case were very sloppy.)
  • Failure of Alien to Meet the Job Requirements
    • Matter of EMC Corporation (Feb. 13, 2012): 6 mos. of experience was required but 9089 Section K did not demonstrate the experience prior to hire by the employer
  • Prevailing Wage
    • Matter of Kohler, Co. (June 14, 2012): Wage determination was $59,467 and SWA job order and Notice of Filing showed offered wage of $59,467.20- BALCA held that given the offered wage was 99.9997% of the PWD, the discrepancy was de minimus
    • Matter of IAC Search & Media, Inc. (May 2, 2012): Where offered wage exceeded both the incorrect amount listed on the 9089 and the PWD, typo on 9089 was not a basis for denial. Moreover, new issue raised on appeal by CO that lower end of wage rage on website ad was below the PWD by $0.40 did not provide adequate notice to employer to file meaningful motion for reconsideration, and therefore cannot be the basis for denial.
    • Matter of Bailey International of Atlanta, Inc. (April 19, 2011): The Board would not follow its holding in Superior landscape and forgive a $333 difference in the prevailing wage and the wage listed on the Notice of Filing.
    • Matter of Take Solutions, Inc. (April 28, 2011): Employer submitted two PWDs, one for primary requirements and one for alternate requirements. The Board held specifically that if an employer receives more than one PWD based on variations of its minimum job requirements, it must abide by the higher wage.
    • Matter of Junee Commercial (June 16, 2011): The Board reiterates that it is the responsibility of the employer to get the validity period of the PWD corrected. Although this case was decided while the prevailing wages were still issued by the SWA, it is fair to assume that the holding would be the same under the current system.
    • Matter of Oracle USA, Inc. (June 28, 2011): Employer inadvertently submitted the wrong PWD in response to an audit and the case was denied. Unlike some of the inadvertent omission cases discussed above, the Board denied this case because it is based on not carefully reviewing the form as compared to the PWD as opposed to an inadvertent omission of a document.
  • Evaluation of U.S Workers
    • Matter of JP Morgan Chase & Co. (July 16, 2012): Where the employer explained why the job requirement were a business necessity and why on-the-job training was not feasible, and the CO did not contend the requirements were unduly restrictive, the employer may reject job applicants whose resumes do not demonstrate that the applicant meets the min. requirements without interview.
    • Matter of Goldman Sachs & Co. (June 8, 2012): Where there is a reasonable possibility the applicant may meet the job’s requirements, it is incumbent on the employer to further investigate the U.S applicant’s qualifications. If the employer does not contact an applicant, the employer must show that the resume alone shows that there is no reasonable possibility that the applicant meets the job requirements.
    • Matter of Kennametal, Inc. (Mar. 27, 2012): 656.21(e)(4) and 656.10(c)(9) require employers to explain with specificity lawful, job-related reasons for not hiring a U.S worker. This includes the duty to explain with specificity why an applicant cannot acquire skills during a reasonable period of on-the-job training.
  • SWA Job Order
    • Matter of A Cut Above Ceramic Tile (Mar. 8, 2012): Audit requested a copy of the SWA job order downloaded from SWA site and the employer provided SWA Job Order Information Sheet instead- BALCA held that 656.17(e)(2)(i), which states that the start and end dates of the job order entered on the application serve as documentation of the SWA job order, coupled with PERM regulatory history, demonstrate proof of publication of the SWA job order is not required, notwithstanding 656.20(b).
    • Matter of Industrial Steel Products, LLC. (June 21, 2012): SWA job order must begin no more than 180 days prior to filing the 9089
  • Notice of Filing (aka Job Posting)
    • Matter of Saints & Piedmont Dairies, Inc. (June 13, 2012): The regulatory requirement that the posted notice of filing name the employer cannot be satisfied by naming the authorized representative of the employer.
    • Matter of MT Heating, Inc. (May 30, 2012): In response to an audit, employer must provide evidence that indicates the location in which the Notice of Filing was posted.
    • Matter of Sun Microsystems, Inc. (Mar. 29, 2012): Where ETA 9089 stated “various unanticipated locations throughout the U.S” this must also be on the Notice of Filing.
    • Matter of Peil Corp. (Jan. 12, 2012): Notice of Filing showed a wage that was lower than the wage on the 9089 and the prevailing wage, which resulted in a denial.
  • Recruitment
    • Matter of Pixar (Mar. 29, 2012): Ads stated high school education was required but 9089 stated Bachelors plus two year’s experience was required. BALCA held this was a violation of 656.17(f)(3) in that the ad did not adequately apprise potential applicants of job opportunity.
    • Matter of Microsoft Corporation (Feb 29, 2012): Case involved a single ad for multiple job opportunities and BALCA held that the words “may require employer-reimbursed travel” were not misleading in that it was clear that the ads were for multiple job opportunities with varying requirements.
    • Matter of Mandy Donuts Corp. (Jan. 7, 2011): Board found that the start and end dates of the job order entered on the application serve as documentation of placement of a state workforce agency job order for 30 days.
    • Matter of A Cut Above Ceramic Tile (Sep. 26, 2011): Case was originally decided April 6, 2011 and came to an opposite position regarding the required proof of the SWA job order. BALCA has granted en banc review and AILA has been requested to participate as amicus presenting the question of whether the employer must show proof of publication of the SWA job order, or whether the application for the job order listing start and end dates are sufficient.
    • Matter of EZChip, Inc. (Jan. 12, 2011): Board found that the regulations do not preclude an employer from providing documentation of the posting other than by submitting dated printouts and that the certifying officer may find that documentation adequate. In the case at hand, employer submitted an affidavit from the vice president of the worldwide sales of the company, but the Board found that there was no indication that the vice president was the official within the employer’s organization responsible for posting of occupations on the website. The reasoning of the case can be applied to any website recruitment.
    • Matter of Sanmina-Sci Corporation (Jan. 19, 2011): The CO denied the application because the documentation of the employee referral program fell outside the recruitment periods. The board found that the employer can document this step “by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.” The dates must only establish that the program was in existence at the time of the recruitment. It doesn’t matter if it was in existence for a greater period of times. Specifically, the board found that in order to make an employee referral program meaningful, the employer must document (1) that its employee referral program offers incentives; (2) that the program was in effect during the recruitment period; and (3) that the employer’s employees were on notice of the job opening at issue.
    • Matter of Unica Corporation (Feb. 9. 2011): The board reiterates examples the regulations give for documentation that can be used to show that recruitment has been conducted by a private firm for the occupation for which certification is sought- i.e. copies of contracts between the employer and the private firm and copies of the advertisements placed by the firm for the occupation involved in the PERM application. Specifically, the Board states that documentation must show that the recruitments was for the specific position for which certification is sought, that the firm actually solicited for the position, and that any solicitation occurred during the time period indicated on the 9089. A contract alone is not sufficient.
    • Matter of HSB Solomon Associates LLC (Oct. 25, 2011): The Board stated that an advertisements placed by a private employment firm should be assessed based on whether it contains enough information to adequately apprise U.S. workers about the job opportunity. The Board held, limited to the facts of this case, that the fact that the employer’s name was not included in the advertisement placed by the private for the position was not fatal to the application.
    • Matter of Simmons Audio Video Etc., Inc. (Mar. 4, 2011): The Board held that the employer’s reasons (“Not Qualified”) for rejection of applicants in this case were too general and therefore insufficient to allow the CO to determine whether the rejected workers were capable of acquiring the skills necessary to perform the job duties in a reasonable period of time.
    • Matter of Quantifi, Inc. (May 12, 2011): Employer lumped together the reasons for rejection of two applicants. The Board held that employer failed to categorize the lawful job related reasons for rejection.
    • Matter of HSBC Bank U.S.A., N.A. (April 11, 2011): The board held that the Wall Street Journal is not a journal acceptable to replace the Sunday newspaper. Importantly, the employer had submitted an affidavit from a professor stating that the Wall Street Journal is a leading business journal, but that evidence could not be considered because it was not in the record and could not be considered on appeal.
    • Matter of ifuturistics, Inc. (April 2011): Similarly, the Board held that the employer had not met its burden to show that Computer magazine is a qualifying professional journal and could not consider documentation submitted by the employer that likely would have met the burden because the employer requested a review before BALCA instead of a Motion to Reconsider form the CO.
    • Matter of Horizon Computer Services, Inc: The Board held that its reading of the regulation and the regulatory history implies that recruitment does not all have to be within the prevailing wage determination (PWD) validity period as long as some recruitment steps are begun during the PWD validity period.
    • Matter of East Tennessee State University (April 18, 2011): The Board denied the case based on the fact that the employer’s advertisements contained requirements not listed on the 9089. Specifically, the board found that the phrase “native or near native fluency” was not equivalent to responding “yes” to question H.13 on the 9089 indicating that a foreign language was required. The Board also found that the advertisement included the employer’s preferences but the 9089 did not. The case presents a long discussion on the issue of preferences as requirements.
    • Matter of Emma Willard School (Sep. 28, 2011): Case was denied based on the employer’s failure to indicate the availability of employer subsidized housing in its advertisements and Notice of Filing. Board held that opting not to list any wage or benefit information in the advertisements did not mean that the advertisements contained terms or conditions less favorable than those offered the alien. However, the Board specifically said that this decision cannot be construed as supporting the proposition that an employer never has to offer or disclose a housing benefit to a U.S. worker.
  • Evidence Must be In the Record on Which Denial Was Based
    • Matter of Cognizant Technology Solutions, Corp. (Jan. 5, 2012): The employer submitted wrong Notice of Filing in response to audit and then submitted a different NOF with it’s request for reconsideration. 656.24(g)(ii) provides that the CO will only consider additional documentation with a request for reconsideration if the employer did not have the opportunity to submit it previously and if it was maintained to support the application for labor certification.
  • 9089 Must be Accurate and Complete
    • Matter of O’Connor Hospital (Mar. 5, 2012): Employer did not include a previous employer on the 9089 but submitted a previous employer letter with the audit response- BALCA affirmed CO’s denial stating that an employer cannot modify the 9089 once submitted.
  • Roving Employee
    • Matter of Patel Consultants Corporation (Feb. 27, 2012): Work location on 9089 was Union, NJ and “various unanticipated locations throughout the U.S.” The Job Order and Ads stated “travel/relocate as required.” BALCA held relocation requirement was not stated on the 9089 and therefore denial was proper.
    • Matter of Etisbew Technology Group, Inc. (Feb 21, 2012): 9089 showed employer’s headquarters in Iselin, NJ, employer contact in Florence, KY and worksite as Tallahassee, Fl. Recruitment was done in Florence and employer stated in request for review that job was roving and headquarters were in Florence, KY. BALCA held that ads and NOF should have stated travel was required or should have apprised applicants where they might have to live.
    • Matter of Deloitte FAS, LLP (Mar. 29, 2012): Denial affirmed. Where “work will be in various unanticipated locations” this should be in the advertising so that U.S workers are apprised of this fact.
  • Form Over Substance: Audit Notice Never Received
    • Matter of 22E 41st Street Corp./O’Casey’s (Jan. 7, 2011): Interesting discussion of what constitutes an employer’s burden of proof in claiming that an audit notice was never received
    • Matter of Forest View Nursing Home and Rehab Center (Feb. 11, 2011): One of a number of cases where the Board decries form over substance. Case was denied because Notice of Filing was not submitted. Employer’s cover letter listed the Notice of Filing as part of the submitted documentation, but it was not part of the appeal File. The Board held that the Notice of Filing was clearly intended to be included, and could not have been if not for a clerical loss upon sending or receipt and therefore, in the interest of fundamental fairness, the denial was not warranted.
    • Matter of Washing Hospital Center (May 13, 22011): The Board vacated a denial based on the employer’s failure to provide the addendum submitted to the SWA detailing the job duties. Board again limited case to “these precise circumstances.” Here, the board specifically found that the CO abused its discretion in refusing to consider whether the absence of the addendum was a mere oversight.
    • Matter of Core Solutions, Inc. (Aug. 22, 2011): Another denial in missing documentation case vacated by the board. Here again, the Board again commented that the employer responded within weeks.
    • Matter of Shastriji Pennsylvania Donuts Corp (Mar. 29, 2011): Preparer’s title was omitted from the application and Section F-4 was missing skill level, but the Board held that neither was material because the preparer’s complete information is provided elsewhere and the balance of Section F-4 was completed.
    • Matter of Nathan Littauer Hospital & Nursing Home (Aug. 16, 2011): Employer failed to complete J-23 indicating whether foreign national was employed, but in sections K-6 and L-7, employer indicated that foreign national had been working for the employer from May 30, 2005 to present. Board held that under the circumstances of this particular case, CO’s denial was arbitrary and capricious.
  • Appellate Issues:
    • Matter of RMS Computer (June 16, 2011): Case points out the problematic issues of asking of BALCA review without first asking for a Motion to Reconsider when you need to put in further evidence. In this case, however, the Board held that the CO abused its discretion in treating a request for reconsideration as a request for review.
  • Requirements
    • Matter of CCG Metamedia, Inc. (Mar. 2, 2011): The Board reaffirms the pre-PERM regulation that an employer’s preference is deemed to be a job requirement. Thus, in the instant case, where the employer put two years experience on the 9089 and two to four years experience in the advertisements, the Board held that the requirements in the advertisement exceeded those on the form and may have discouraged minimally qualified U.S applicants from applying.
    • Matter of Donna Ricco-FYC Apparel (Sic) (Mar. 23, 2011): The Board fins that primary requirements of a Bachelor’s Degree plus five years experience are not substantially equal to alternate requirements of 17 years of experience.
    • Matter of Rooted & Ground Nursery, LLC (Mar. 11, 2011): Employer admits that the alien is the only employee with requisite experience to train another person fir his position and Board states that nothing precludes the alien worker from doing so. The Board says that the regulations state that an employer must demonstrate that it is no longer feasible to train a worker to qualify for the position, not that is no longer feasible for the employer to train a worker to qualify.
  • College/University Issues:
    • Matter of East Tennessee State University (April 18, 2011): Case reaffirms that in college or university teaching positions, the university can use the best qualified standard in evaluating applicants, even if it is not a special handling case.
    • Matter of the University of Texas at Brownsville (Jul. 20, 20110: Board holds that the journal ad needed for special handling cases can be in electronic form.

 

Practice Pointers:

  • Recruitment Issues:
    • (Proof of Job Bank Posting) For now, the safest way to operate is to print copies of the job order and the posting date information. If you have a pending case that is denied where you do not have the documentary proof, it would be worthwhile to appeal, if you have the time.
    • (Website Posting Documentary Requirements) If you are using any website, the best documentation to include is either copies of each day of the posting or a copy of the posting (from the posting period) and an affidavit from a person in the company or organization responsible for actually placing the posting on the website, which is attested to under the pains and penalties of perjury. The affidavit should be dated before filing and should be part of your PERM file.
    • (Employee Referral Programs) To be absolutely sure that an employee referral program will meet the guidelines, you might want to have your employer send a broadcast email or post on company intranet, a reminder of the employee referral program at the beginning of their PERM recruitment. The reminder should contain the full program with incentives. You should only use the employee referral program if one of your forms of recruitment is posting the job opportunity on the employer website. While other methods might succeed, this would be the only “foolproof” mway.
    • (Use of Private Employment Firms) If you are going to use a private employment firm as one form of recruitment, a bare-bones signed contract is not enough. The contract should at least mention the specific job opportunity. Further documentation should also outline what the firm did and the specific dates of its research.
    • (Rejection of Applicants) To be sure that all reasons for rejection are adequately documented, you might consider delineating the reasons by applicant (similar to what was required in the pre-PERM labor certification process.) This assures that you will not leave out any applicant nor incorrectly generalize the reasons for rejection.
    • (Acceptable Journals) Do not use a professional journal as a substitute for a Sunday newspaper ad unless you know that the journal is without a doubt a professional journal. If you have to use a journal that you have not used successfully before, be sure you have documentation ready should the case be denied, and ask for reconsideration by the CO so that you can submit that document.
    • (Content of Advertisement) If a job requires that an employee lives in the employer-subsidized housing, that would have to be listed in the advertisement because it is a requirement as well as a benefit.
  • Form Over Substance:
    • (Incomplete Applications) BALCA’s willingness to put substance over form in the above and a  number of other cases suggests that it is worthwhile to appeal a case when you have the time, keeping in mind some of the constants in these cases which include quickly filling a Motion to Reconsider and submitting documents, where relevant, or quickly asking for review, and having a clear legal argument.
  • Appellate Issues:
    • It is important to carefully assess what you will be arguing when you appeal your case. If your argument requires submission of documentation, you will need to file a Motion to Reconsider, and, if that is denied, you can then appeal the denial to BALCA, thereby including that documentation in the record. BALCA is limited to an analysis based on evidence upon which the CO’s denial is made.
  • Requirements:
    • (Employer’s Preference)Even if the employer’s real world requirements are – e.g. 2-4 years experience – the fact that PERM form requests minimum requirements should explained to the employer so there is no conflict.
    • (Feasibility to Train) The paucity of PERM cases on this issue may be due to the fact that even pre-PERM it was very difficult to prove the infeasibility of training a new employee. If you wish to file a case on this basis, I suggest you carefully read the pre-PERM cases and have documentation available to prove all your reasons.
  • College/University Issues:
    • (Use of Print Ad Not Required) DOL has issued an FAQ on the issue of electro9nic journal ads which goes beyond the University of Texas case below and requires that an electronic journal ad must be posted for at least 30 days.