PERM FAQs: Filing (Round 2)

 

Question: Does the language on the electronic in-house media Notice of Filing need to be
exactly the same as the language on the physical in-house Notice of Filing?

Answer: The regulations require that the employer publish the notice internally using in-house
media–whether electronic or print–in accordance with the normal internal
procedures used by the employer to notify its employees of employment
opportunities in the occupation in question. The language should give sufficient
notice to interested persons of the employer’s having filed an application for
permanent alien labor certification for the relevant job opportunity. It is not required
to mirror, word for word, the physical posting. In most cases, the physical posting
language will be the most efficient way to electronically post the Notice of Filing; in
others, the software program used to create the electronic in-house posting may be
unable to accept all of the language used in the physical Notice of Filing. In every
case, the Notice of Filing that is posted to the employer’s in-house media must state
the rate of pay and apprise the reader that any person may provide documentary
evidence bearing on the application to the Certifying Officer. If there is insufficient
space to include the Certifying Officer’s address, then information as to where the
address can be found must be provided.

Question: Does the advertisement have to contain the so-called “Kellogg” language where the
application requires it to be used on the application?

Answer: Where the “Kellogg” language is required by regulation to appear on the application,
it is not required to appear in the advertisements used to notify potential applications
of the employment opportunity. However, the placement of the language on the
application is simply a mechanism to reflect compliance with a substantive,
underlying requirement of the program. Therefore, if during an audit or at another
point in the review of the application it becomes apparent that one or more U.S.
workers with a suitable combination of education, training or experience were
rejected, the application will be denied, whether or not the Kellogg language appears
in the application.

Question: Can jobs requiring experience be advertised through an on-campus placement office?

Answer: For professional positions, the regulations at 20 CFR 656.17(e)(1)(ii)(D) permit, as
an additional recruitment step, optional pre-filing recruitment at or through a college
or university placement office. The preamble to the regulation (69 Fed. Reg. 77325,
77345 (Dec. 27, 2004)) assumed that this option would be used only if the
employment opportunity requires a degree but no experience. The Department has
examined this policy in light of the fact that many college and university placement
offices maintain job listings that are used by alumni with experience as well as recent
college or university graduates. Consequently, the job opportunities requiring
experience are included in the listings making campus placement offices a viable
recruitment source for professional job requiring experience as well as not requiring experience. As a result, the Department is clarifying its position and permitting this
option to be used for employment opportunities even if the job requires experience
in addition to the degree.

Question: Is the employer required to include the statement, “any suitable combination of
experience of education, training, or experience is acceptable” on the application
when the employer requires experience in an alternate occupation and not in the job
offered?

Answer: No, the employer is not required to include the statement on the application if the
employer has indicated it requires experience in an alternate occupation and not in
the job offered. The “any suitable combination of experience of education, training,
or experience is acceptable” statement is only required where there are primary as
well as alternative requirements and then only if the alien is already employed by the
employer and the alien does not meet the primary job requirements and only
potentially qualifies for the job by virtue of the employer’s “alternative” as opposed
to its “primary” requirements.

Question: Can the employer submit alternative evidence in the absence of primary evidence in
response to an audit request?

Answer: Under the procedures outlined in 20 CFR 656.20, in response to an audit, employers
must present the required documentation. The documentary evidence the
regulations require the employer to maintain in its compliance file is what is sought
in an audit request. For example, the use of an employer’s web site is to be
documented by dated copies of pages from that site advertising the occupation
involved in the application. However, if the employer does not have the primary
evidence suggested by the regulation, it may attempt to satisfy the request through
the use of alternative evidence not specifically listed in 656.17. In the case of the
employer’s web site, in the absence of a copy of the posting, the employer may
provide an affidavit from the official within the employer’s organization responsible
for the posting of such occupations on the web site attesting, under penalty of
perjury, to the posting of the job. Whether such evidence will be accepted depends
upon the nature of the submission and the presence of other primary documentation.
The more primary evidence is not provided, the more likely the audit response will
be found to be non-responsive.

Question: The United States Citizenship and Immigration Services (USCIS) has posted a
sample of a Notice of Filing for a Schedule A permanent labor certification on their
website. Will the Department of Labor accept/honor such a posting as sufficient proof
of the Notice of Filing for a non-Schedule A permanent labor certification?

Answer: An employer may use the posting sample of a Notice of Filing issued by the USCIS
and such a posting will be honored by the Department of Labor (DOL) provided that
the Notice of Filing includes the employer’s name when filing under the basic labor
certification process. DOL will honor the use of the sample form, but is not endorsing
or requiring its use. Employers may use other forms, as long as they comply with
the PERM regulation. Please note that, while the USCIS sample does not include an
employer name field, the Notice must contain the name of the employer if the
application is filed under 20 CFR 656.17. From previous “approved” FAQ drafts:

After completing our recruitment, but before filing the ETA Form 9089, our
company’s name was changed after it was wholly acquired by another
company. Does the company name used in the advertisements used for recruitment
have to match the company name used on the ETA Form 9089?
The employer must conduct recruitment using its legal name at the time of the
recruitment. However, an Application for Permanent Employment Certification (ETA
Form 9089) must be filed in the name of the employer’s legal name at the time of
submission. If a merger, acquisition, or any other corporate change in ownership
occurs between the time of recruitment and the time of submission, resulting in a
disparity between the employer’s name shown on the advertising used to recruit for
a job opportunity and the employer’s name on the submitted ETA Form 9089, the
employer must be prepared to provide documentation — in the event of an audit –
proving that it is the successor in interest, a determination made based on the
totality of the circumstances, including whether the current employer has assumed
the assets and liabilities of the former entity with respect to the job opportunity.

Question: Does the Office of Foreign Labor Certification expedite applications?

Answer: The Office of Foreign Labor Certification (OFLC), as a matter of long standing
policy, does not expedite the processing of applications due to the particular
circumstances of any individual employer, foreign worker, or a family member.

Question: What documentation can an employer provide to evidence its use of
an employee referral program with incentives as one of the mandatory three
additional recruitment steps for a professional occupation?

Answer: Pursuant to 20 CFR 656.17(e)(4)(ii)(G), an employer can document its use of
an employee referral program with incentives by providing dated copies of its notices or
memoranda advertising the program and specifying the incentives offered as well as
other appropriate documentation. In addition to establishing the existence of a referral
program, employers must document that its employees were aware of the vacancy for
which certification is being sought through means such as a posting on the employer’s
internal web site. The Notice of Filing provided to satisfy § 656.10(d) shall not be
sufficient for this purpose.

Question: May an employer submit unsolicited documentation to the National
Processing Center?

Answer: Where an employer or its representative submits unsolicited documentation in
conjunction with, or after filing an ETA Form 9089, the application will be automatically
selected for audit except in the case of a request for reconsideration filed after an
application is denied. Where an employer or its representative submits unsolicited
documentation prior to filing an ETA Form 9089, i.e., where there is no record at the
National Processing Center of an application having been submitted by the employer,
the documentation will be returned to the sender.
Please note that where an employer or its representative does receive a request for
information or documentation from the National Processing Center, e.g. a request
regarding confirmation of the bona fide existence of the business or sponsorship
verification, such a request does not necessarily signify the application has been placed
into the audit queue. However, failure to respond to the request for information or
documentation may result in the application being placed in the audit queue or denied.

Question: For purposes of the Notice of Filing that is required to be made in
connection with a PERM application, what does the Office of Foreign Labor
Certification count as a “business day?”

Answer: OFLC has consistently interpreted business days to mean Monday through
Friday, except for Federal holidays.

Question: Who may the employer designate as its point of contact in
Section D of ETA Form 9089?

Answer: The employer must designate as its point of contact an employee of
the employer who is authorized to act on its behalf in labor certification
matters pertaining to the specific job opportunity for which certification is
sought. The designated employee may not be the sponsored foreign worker.
The employer point of contact will be contacted by the National Processing
Center to verify whether the employer is authorizing the filing of the
application and sponsoring the foreign worker named therein. Therefore, an
authorized employee’s name and contact information must be listed in
Section D of the employer’s submitted ETA Form 9089. It is not acceptable,
for example, to reenter the employer’s name listed in Section C of the ETA
Form 9089 or provide a generic title such as “HR Manager.” Moreover, as
indicated on the ETA Form 9089 and accompanying instructions, such a
person’s name and/or contact information, e.g., the phone number and email
address, must be different from the attorney or agent name and/or contact
information listed in Section E of the ETA Form 9089, unless the attorney or
agent is an employee of the employer.

Question: Can the employer designate its attorney or agent as its point
of contact in Section D of the ETA form 9089?

Answer: The employer can designate its attorney or agent as its point of contact
in Section D in addition to Section E, Attorney or Agent Information, only when the
attorney or agent is an employee of the employer. Otherwise, the point of contact
must be an employee who is authorized to act on the employer’s behalf in labor
certification matters and, as indicated on the ETA Form 9089 and accompanying
instructions, the point of contact name and contact information, e.g., the phone
number and email address, must be different from the attorney or agent name and
contact information listed in Section E. The designated employee may not be the
sponsored foreign worker.

Source: United States Department of Labor