Filing Labor Certification Applications Under The New PERM Regulations


Edward R. Litwin & Marcine A. Seid

PERM1 is here!

After being “imminent” for more than 3 years, the final regulations were published on December 27, 2004. Notwithstanding all the hand-wringing anticipation, fueled by much speculation caused by a paucity of information from the Department of Labor, the PERM regulations are what they are: a hodgepodge mix trying to Band-Aid a program that is not popular with the Department of Labor or Americans generally. Its main supporters are employers and the aliens who can benefit. The regulation is, in the final analysis, a reborn RIR with twists. A reborn RIR, because before filing, the employer must conduct recruitment efforts. In fact, there is no “file-then-recruit-when-so-instructed” option. There is no fast track or slow track. Everything must now be filed as a reborn RIR or, using the present terminology, be filed as PERM.

Twists will immediately jump out: different recruitment requirements depending on whether the position being certified is professional or not, specific days of the week for advertisements, audits rather than NOF’s, recruitment records maintained but not submitted, unless requested later, etc.

This article will acquaint the reader of the changes that s/he must be aware of to properly prepare and file under PERM.

The Department of Labor regulations promulgated on December 19, 1980 set forth a fact-finding process which was designed to develop enough information to support granting or denying a permanent labor certification. The backbone of that process was the filing of two forms: an ETA 750, Part A, which listed the employer’s job duties and job requirements and an ETA 750, Part B, which listed the alien’s information, qualifications and work history. The duties and requirements could be reviewed to determine whether there were any potential violations of the regulations, for example, a combination of duties, unduly restrictive requirements, etc.

The alien’s form could be looked at to determine if the alien met the requirements or, when compared to the alien’s qualifications, the requirements listed on ETA 750, Part A, were unduly restrictive. After filing, the next step was to go through a supervised recruitment process through the local SESA. U.S. applicants would be instructed to submit their resumes and/or applications directly to the SESA office. At this point, U.S. applicants did not have any idea as to who the employer was, only in what city the job was located. The U.S. applicants, however, were usually informed as to the specific job duties, the specific job requirements, as well as the salary being offered. By responding directly to the SESA, the responses could be monitored and potential fraud could be spotted.

An exception to the normal process was allowed for in 20 CRF§ 656.21(i) which provided that a certifying officer could reduce the employer’s recruitment efforts if the employer had adequately tested the labor market prior to filing. These were called “waiver” cases since the employer requested the certifying officer to waive any further recruitment requirements.

The “waiver” process, later renamed “Reduction in Recruitment,” did not gain wide spread popularity until GAL1-97 which, in an effort to streamline the process, became the procedure of choice for attorneys and employers, as well as the Department of Labor.

1. When did PERM go into effect? (What was the last date that the old style labor certifications could have been filed?)

According to the regulations, the effective date was March 28, 2005. However, certain prevailing wage provisions had a March 8th effective date.

This gave a relatively short time to prepare and file labor certification applications under the old regulations. Once the effective date was reached, filing under the old regulations was no longer allowed and only filings under the PERM regulations, which meant compliance with all the PERM requirements, were accepted. However, this did not stop the processing of labor certification applications filed prior to PERM’s implementation. Until at least 2007, and possibly beyond, labor certification applications will be processed under two sets of regulations, for those filed before March 28, 2005, under the pre-PERM regulations, and for those filed on or after March 28, 2005, under the PERM regulations. This will continue until all the cases filed pre-PERM are adjudicated or refiled under PERM. Until this happens, the two regulations will continue to be in effect. There will be no crossover, so arguing PERM regulations in a non-PERM case will have no effect and vice versa.

On a number of occasions, the Department of Labor indicated that the regulations would take effect 60-90 days after publication. Immigration attorneys and employers were hoping for a 90-120 day implementation period to allow enough time to evaluate whether their clients would fare better under the old regulations or under PERM. The rational was that if it was concluded that better consideration could be had under the old regulations, a longer implementation period would allow enough time to recruit under RIR.

The Notice of Proposal Rulemaking (NPRM)2 did not give any indication as to how quickly the regulations would be implemented after publication. The recently published regulations cleared up any confusion.

  1. What were the advantages of filing under the old regulations?

    The advantages of filing under the old system were basically a review of the disadvantages of filing under PERM. According to the NPRM, a number of changes were proposed that would have drastically affected the labor certification process. The final regulations retreated on a number of those proposed changes and modified others. Any one of the changes found in the final regulations, however, had to be evaluated to see if it was compelling to file under the old system before it ended. The following was a checklist to help practitioners determine whether a labor certification should have been filed prior to PERM’s implementation:

    1. You would have wanted to file your labor certification before March 28, 2005 if the job requirements did not fit within the O*NET system. According to the final regulations, the job opportunity requirements cannot exceed the specific preparation level given by the O*NET job zones.3 This disadvantages some occupations.

      In some cases, the O*NET SVP is not the same as the DOT SVP. For example, a Software Engineer under the DOT is a level 8, which means that up to 4-10 years of education, training, or experience can be required by the employer. Under the O*NET, this occupation is a Zone 4, which means that an employer under PERM cannot require more than 2-4 years of education, training or experience unless the employer wants to use a business justification argument.4 For example, if the employer requires a Masters degree and three years of experience (which would count as 7 years of specific vocational preparation) for a Software Engineer, it was advantageous to file under the old regulations rather than the PERM regulations, unless the employer wanted to try to prove the business necessity of these “excessive” requirements.

      The NPRM was going to limit any requirements beyond education and experience to circumstances where: a) The employer had employed a U.S. worker for the same job with the special requirements within 2 years of filing the application; or b) The special requirements were normal to the occupation for a person to perform the basic job duties and were routinely required by other employers in the industry. Fortunately, these provisions were not included in the final regulations.

    2. If the alien for whom the labor certification was being filed was in a management or executive position, worked for a small company, had an ownership interest, or was related to the owner, stockholder, partner, corporate officer or incorporator, you should have considered filing under the pre-PERM regulations since the PERM regulations imply that such persons may have a harder time obtaining a labor certification. A specific question about this is on Form ETA 9089 at C.9. Under 20 CFR 656.17(e) of the PERM regulations, alien influence and possible control over the job opportunity could lead to a denial. Under an audit, additional documentation must be provided to assist the Department of Labor in determining whether there is undo influence and control over the job opportunity. Documentation that must be provided to the certifying officer to determine whether or not the job opportunity is clearly open to U.S. workers includes:

      1. a copy of the Articles of Incorporation or other documents that established the company;
      2. a list of all officers, shareholders and past partners, their titles and positions in the business and a description of the relationships to each other and to the alien;
      3. financial history of the company including investments by each investor, including the alien;
      4. documentation showing who has control or influence over the hiring decisions; and
      5. if 10 or fewer employees, a description of any family relationship between the employees and the alien.5

      Unfortunately, supplying all this documentation under PERM may, in fact, be convincing enough to the certifying officer to out of hand, deny the application, since the certifying officer may determine that, due to the alien’s influence, there is not a bone fide job opening. It may be virtually impossible to provide enough documentation to convince the certifying officer otherwise.

      Under the old regulations, alien ownership or influence was always suspect, since DOL questioned whether a bone fide employment opportunity actually existed. However, the regulations did not prohibit approval in such situations and questions were seldom asked. There was no specific question on the labor certification forms, as there are now, to automatically bring this issue to the attention of DOL. Therefore, due to the fact that the question rarely came up either on a form or on a NOF, a number of labor certification applications were approved in cases which otherwise could, at best, have been questioned or, at worst, denied.

    3. If there was a possibility that a U.S. worker could be able to learn the duties and be able to perform them after a reasonable training period, it may have been prudent to have filed under the old regulations. The final regulations disallow rejection of U.S. applicants if they can acquire the skills necessary to perform the duties in the occupation during a reasonable period of on-the-job training. 6 Because this is a very subjective area, immigration attorneys may have wanted to postpone the need to convince the Department of Labor that a person could not be trained in a “reasonable” period of training, whatever that means, for as long as possible.

    4. If the alien’s salary was within 5% of the prevailing wage, the attorney may have wanted to file under the old regulations. The old regulations considered payment of 95% of the SWA determined prevailing wage to have satisfied the Prevailing wage requirement. The NPRM proposed to do away with the 5% allowance. However, the prevailing wage provisions of the Consolidated Appropriations Act of 2005 preempted the proposed regulations by doing away with the 5% rule for labor certification purposes, effective March 8, 2005.7

    5. The employer did not want to place its name in the ads. While this has been a general policy requirement, frequently, employers who did not want their name in the advertisements could remain anonymous. For example, a publicly traded company may not want to advertise that it is seeking the services of a CEO or other high-level officer, since this could have an impact on its stock valuation or market position. Under the PERM regulations, the employer’s name MUST be in the advertisement.8

    6. The labor certification needed to be filed in order to meet the 365-day requirement for AC-21.9

    7. The employer did not want to pay the extra cost that will be incurred due to the PERM recruitment requirements.

    After reviewing these options, many attorneys, employers, and aliens chose to file under the old regulations and to have the cases processed under the old system.. As the implementation of the PERM regulations unfolds, many choose to refile or reapply, if the PERM process ends up being more promising.

  2. What timeframe had to be followed in order to file under the old system?

    Of course, in order to have filed under the old regulations, the labor certification application had to be filed on or before March 27, 2005. All labor certifications received on or after March 28, 2005 had to meet the PERM requirements. All cases filed before March 28, 2005 will continue to be processed under the old regulations.

    The biggest potential problem for filing RIR cases within the short implementation period was to establish a “pattern of recruitment.” This meant that the employer had to assemble documentation which showed at least one print ad and other recruitment documentation normal to the industry, covering an appropriate period of time. As attorneys rushed to establish a pattern, it was as important as ever to have an acceptable pattern, since the practitioners did not want to ultimately have their RIR requests rejected, or, even worse, have the labor certification denied. If that happens, it will be necessary to file a new labor certification application under the PERM regulations, something each attorney had made a deliberate decision not to do, by filing before the PERM regulations became effective. Some attorneys who rushed to file will have to wait up to two years or more to find out if DOL accepts the “pattern” they created.

    An interesting side note: Under the old regulations, an employer could not refile a labor certification for the same occupation for six months after the final denial.10A a final denial under the old regulations will no prevent the immediate filing of a new labor certification application.11

    By the way, it is interesting to note that labor certifications filed just prior to the PERM implementation date may experience a much lengthier processing that similar applications filed after March 28th. Cases filed prior to March 28th have been assigned to the Backlog Reduction Centers (BRC). Using the FIFO standard that DOL is implementing, cases filed just before March 28th will be among the last ones adjudicated at the BRC. This could be a delay of two or more years, while similar cases filed under PERM, just a short time later, may be adjudicated in as little as 45-60 days.

  3. What are the advantages of filing under the PERM system?

    Notwithstanding the disadvantages as have been mentioned above and will be mentioned in greater detail later, some employers and attorneys found advantages to filing under the PERM system and therefore, decided to wait until after PERM’s implementation. Some have chosen to convert already filed cases to PERM processing. There are a number of advantages for filing under the PERM system:

    1. It appears that the PERM system will be faster. There is obviously some containing skepticism about this claim. When the concept of PERM was first introduced, a labor certification application approval, in only a matter of hours, was suggested. The NPRM indicated that a decision “within 21 calendar days” was anticipated, assuming that no audit was necessary. After that, a suggestion was made that a more realistic timeframe would be 60 days. Just prior to the publication of the PERM regulations, it was suggested that the 60-day target may have been too ambitious.

      Over the course of the PERM rollout, even before final regulations, the idea went from merely a few hours to an unknown period of time. Some pessimists, including the authors, have claimed that without appropriate funding and in light of the huge potential for fraud, backlogs on the order of what has been experienced in recent years could quickly develop.

    2. In some cases, a problem with the pre-March 8th Prevailing Wage Determination made it advantageous to wait until PERM was implemented. A 4-tiered prevailing wage survey had to be offered by the government.12 This 4-tiered survey offered the possibility of more realistic, real world salaries.

      In addition, under the PERM system, a median alternative is available.13 Under some circumstances, a median salary may be less than the currently acceptable mean salary.

    3. Employers that experienced a layoff within the last 6 months found it advantageous to wait for the PERM regulations. Not that the PERM regulations are easier: It was simply impossible to file under the pre-PERM policies, unless a decision was made to file a non-RIR application. Such Non-RIR filings were based on the hope that employment circumstances will be more favorable to the alien sometime in the future when recruitment is required. Prior to the Backlog Reduction Centers, that future time could be five years or more in some states. With the BRC’s that time has been reduced to an estimated 2 plus years.

    4. PERM eliminated Schedule B.14Until PERM, any occupation listed on Schedule B required a waiver. This turned out to be a pro-forma request and most, if not all, waiver requests were granted. However, under PERM, there is no need for a waiver request with its potential of being denied. In addition, Schedule B occupations were not allowed to use the RIR procedure. Under PERM, there is no Schedule B and occupations previously on Schedule B positions fall under the normal PERM procedures.

2. What are the general requirements to file under PERM?

The PERM regulations make the prefiling, RIR-type recruitment the only process available to employers, leaving it up to the Department of Labor to determine when a particular case should be “audited” and supervised recruitment required.

Under the PERM regulations, State Workforce Agency (SWA), formerly SESA, have no involvement in the permanent labor certification process other than providing a Prevailing Wage Determination, and taking job orders.15 The idea is that the combination of prefiling recruitment, automated processing, and the elimination of most SWA involvement will result in a significant reduction in the average time required to process labor certification applications, making for a much faster turnaround time in adjudication. This turn around time has been estimated by DOL to be 45-60 days, assuming that no audit is required.16 Even if there is an audit, however, the three standards used in adjudicating labor certification applications under the PERM system remain the same as they have been since 1977, that is:

  • Whether the employer has met the requirements of the regulations (this has always allowed the Department of Labor to deny a labor certification even if there is abundant evidence of a shortage of U.S. workers);

  • Whether there are insufficient workers who are able, willing, qualified and available (language which is directly out of Section 212(a)(5) of the Immigration and Nationality Act); and

  • Whether the employment of the alien will have an adverse effect on wages and working conditions of U.S workers similarly employed (also straight out of the Immigration Act).

Under the PERM regulations, the processing of a labor certification begins when an employer, or the employer’s agent or attorney files an application for permanent labor certification (Form ETA 9089). The application form requires the employer to respond to a great number of items; many of them consisting of attestations which require the employer to do no more than check “yes”, “no”, or “N/A”. While such simple attestations may appear nocuous, they carry great importance. Not only do they reflect information that may precipitate an audit or denial on their own, they are also interrelated with other questions, which, when looked at together, may also be the cause for an audit or denial. The employer does not file any supporting documentation with this form. However, documentation of recruitment efforts, and responses to those efforts as well as other matters, must be assembled and submitted to the Department of Labor should an “audit” so request.17 When an audit is requested, the documentation must be submitted to the Department of Labor in a timely manner (30 days).18 As part of the audit process the

C.O. may require supervised recruitment. 19 After an audit has been completed, the regulations provide that the certifying officer may 1.) Certify the application, 2.) Deny the application, or 3.) Order supervised recruitment in future cases up to two years where there is a substantial failure to produce documentation, inadequate documentation, a material misrepresentation or there is any other appropriate reason.20 If the application is denied, the employer may request a review by the Board of Alien Labor Certification Appeals (BALCA).21

  1. What would disqualify an employer from being able to use the PERM procedure?

    There are numerous reasons why an employer may not be able to file a labor certification under the PERM procedures. These include:

    • Unwillingness to pay the 100% prevailing wage;
    • U.S. applicants who meet the minimum requirements or could perform the job with reasonable training;
    • The necessity to use experience gained with the employer in order to qualify the alien for the position, but the inability to show that at least 50% of the duties of the job where the experience was gained are different from the date of the job for which certification is being applied for; and
    • The position requires a combination of duties and the employer cannot document such a combination is a business necessity.

3. How can an employer “convert” to PERM?

The regulations have made it clear that a labor certification already filed under the old regulations can be converted and processed under the PERM regulations. The Department of Labor has been very careful in its choice of words, and, rather than using the word “convert,” the word “refile” is used. On a number of occasions, the hope has been expressed that many employers would opt for the refile provision.22 In fact, the very first question on Form ETA 9089 asks, in essence, whether the employer is refiling the case. By refiling, the Department of Labor hopes to reduce the number of cases at the backlog reduction centers, thereby eliminating some of the pressure at those centers.

However, it was inferred from presentations shortly after the publication of the PERM regulation indicated that the Department of Labor was going to be so stringent in their interpretation, that the refiling option generally appeared to be very limited. 23

Of course, refiling has two advantages: 1. keeping the old priority date, which, in times of priority date retrogression, becomes increasingly more important; and 2. processing under the new PERM regulations with its far faster adjudication timeframe. Refiling, however, should not be confused with a new filing. “Refiling” is accomplished when an employer files for an identical position requesting that the old priority date from the previously filed labor certification application be transferred to the refiled application. A “new filing”, even for a position for which a labor certification application was previously filed, does not have to be identical and will not be able to make use of any old priority date. As of the writing of this article, there appears to be no prohibition, at least in the regulations, from continuing to process a labor certification application filed under the old regulations, and, concurrently, filing and processing a labor certification application under the PERM regulations.

The main sticking point, however, to making conversion attractive, is the strict adherence to the requirement that the new filing under the PERM regulations be for “an identical job opportunity.”24 The regulations explain that in order for a job opportunity to be identical, the employer, alien, job title, job location, job requirements, and job description must be the same as in the original application, with any accepted amendments. William Carlson, Chief, Division of Foreign Labor Certification, said that the word “identical” was chosen after careful consideration. When queried as to whether a change of address of merely across the street would still be identical, his answer implied that it would not. Such wording and such tight interpretation of this wording makes conversion an extremely unlikely and disfavored option. 25

That being said, refiling remains an option until a job order has been placed with the local SWA under supervised recruitment. A the job order placed by an employer as part of the RIR recruitment efforts is an optional step and does not preclude refiling.26

To refile under the PERM regulations, all of the PERM filing recruitment requirements must be complied with. 27 This includes appropriate recruitment for professional or nonprofessional positions, Sunday ads, etc. In addition, the old labor certification must be withdrawn. The regulations are so adamant about withdrawal that if a new labor certification is filed under the PERM regulations, requesting to keep the old priority date, the new filing will be deemed to be a withdrawal of the originally filed application.28

  1. Under what circumstances will an employer want to refile?

    One should not convert under the PERM regulations without carefully considering the risk and consequences involved in the refiling procedures. First and foremost, one should determine the likelihood of success of the PERM application before withdrawing the originally filed labor certification. Once an employer withdraws the originally filed labor certification, it cannot be reinstated in the unfortunate event that the PERM application is denied.29 This is not just a denial of the PERM application, but the loss of the original filing date, with implications for adjustment of status under INA§245(i) various benefits under AC21.30

    The main reason to convert a previously filed labor certification is to be able to benefit from the faster processing time. A faster processing time may be seen to be more of a benefit to the alien rather than the employer. However, alien employees may, in the near future, exert much pressure on their employers to refile, if possible.

    There are numerous reasons when conversions may not be attractive. Recruitment at the present time may not be attractive. There may have been recent layoffs by the company or the industry. In light of the different Specific Vocational Preparation levels under PERM31, it may not be possible to fit within the PERM regulations to remain “identical.” If the alien has an issue regarding 7th or 8th year H-1 extension, it may not be attractive to convert. (See attachment #3 “Factors to Consider in Whether to Convert to PERM or continue RIR”)

    It is uncertain, at this time, whether US CIS will permit the employer to withdraw the labor certification, and retain the originally filed labor certification date which would allow the alien to use or continue to use the provision under AC 21. Therefore, if the alien has exceeded the sixth year H-1B time limit or has less than 365 days left before reaching that sixth year H-1B time limit, it would be not be wise to refile under the PERM regulations until the alien can be assured by USCIS that s/he can continue to stay and work legally in the U.S., pending the approval of his/her permanent resident status.

  2. What is the procedure for RIR refiling?

    1. First, in order to refile or convert the old labor certification, the previous labor certification must be withdrawn. The new filing, under the PERM regulations, must be filed within 210 days of the withdrawal.32 If the old case has not been withdrawn prior to refiling under PERM and requesting the original priority date, the regulations will automatically deem the previously filed labor certification application withdrawn at that time.33

      To refile, a job order must not have yet been placed with the local SWA under the prior labor certification regulations.34 The only exception that would not bar the employer from refiling is if the employer had placed the job order as part of the Reduction and Recruitment (RIR) efforts, a step that was optional and not required.35

      Along with the refiling, a copy of the previously filed labor certification, with amendments, will need to be submitted, when requested by the certifying officer.36 The purpose of this will be two-fold: 1.) To verify the original priority date; and 2.) To verify the “identicalness” of the refiling.

      Any minor modification or variation from the originally filed labor certification in regard to the employer, alien, job title, job location, job requirements and job description will be deemed unacceptable and will result in a denial of the “refiled” PERM application.37 However, it will be processed as a new PERM filing, but the employer and alien will lose the old priority date.

      Since the originally filed labor certification and any amendments must be forwarded to the processing center when requested, it can be presumed that a refiled case will be scrutinized very closely against the originally filed labor certification. Therefore, it is very important that every item on the PERM application in regard to the five factors mentioned above be exactly the same as those on the originally filed application.

      There is no guarantee that, upon refiling, the alien will be granted the old priority date. If the certifying officer does not think the two cases are “identical” the previous priority date will not be given. At a liaison meeting, the notion of an employer being able to learn whether the application under PERM will be certified prior to withdrawing a pending case (thereby retaining the old priority date ) was rejected.38

4. What job requirements can the employer use?

As with the old regulations, the job requirements must be those normally required for the occupation and may not exceed the specific vocational preparation. The specific vocational preparation levels are those assigned by the O*NET Job Zones. Under the previous regulations, these were assigned by the DOT. The O*NET SVP may only be exceeded if the employer can demonstrate that the requirements arise from a business necessity. Business Necessity was defined in Matter of Information Industries 39(88-INA92), in order to prove a business necessity, an employer must demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner.

The PERM regulations continue other basic requirements from the past:40

  • The job requirements must represent the employer’s actual minimum requirements for the job opportunity; 41and

  • The employer must not have hired workers with less training or experience for jobs substantially comparable involved in the job opportunity. 42 (The regulations define “substantially comparable” to mean a job requiring performance of the same job duties more than 50% of the time).43

  • To help DOL to evaluate the employer’s requirements, if the alien is already employed by the employer, the Department of Labor will look at the training and experience which the alien possessed at the time of hiring, since normally the employer cannot require U.S. applicants to possess training and/or experience beyond what the alien possessed when hired. 44There are two exceptions to that rule: 1. If the alien gained experience, while working for the employer in a position not substantially comparable to the position for which certification is sought;45 or 2. It is no longer feasible for the employer to train a worker to qualify for the position.46

  1. What about experience gained on the job?

    The NPRM proposed to do away with allowing any experience gained with the same employer, any subsidiary, any overseas affiliate, etc.47 The final regulations backed off from this extreme position. Under PERM an employer, in this context, is defined as an entity with the same federal employer identification number.48 Therefore, experience gained with affiliates, subsidiaries, overseas entities, etc., can be used, as long as they do not have the same federal employer identification number as the petitioning employer. It is only experience gained with the petitioning employer that cannot be used, unless one of the two exceptions mentioned above applies.

  2. Can the employer use the business necessity argument?

    The NPRM was very specific that “business necessity”, due to the difficulty that DOL had in applying that concept, was to be deleted from the regulations, except in the case of foreign language requirements. 49 However, the final PERM regulations drew back from that position and allow an employer the opportunity to offer a business necessity argument and rationale in order to justify its minimum requirements.50

  3. Is the SOC or DOT controlling?

    The PERM regulations make it quite clear that the Specific Vocational Preparation (SVP) as shown by the O*NET Job Zones is controlling.51 This could create potential problems both in converting from RIR to PERM as well as for PERM processing in the future. Many O*NET Job Zone SVP levels are lower than the DOT SVP. Dr. Carlson at the 2005 AILA Mid-Winter Conference indicated that he was aware of these anomalies and that instructions would be issued shortly.

    Attorneys should note that the preamble may provide helpful language that can be pointed out to the certifying officer on appropriate occasions: “…certifying officer’s have traditionally exercised their judgment in determining whether the job requirements are normally required for the occupation…and in applying the SVP to specific case situations, and they will continue to make such judgments with O*NET.”52

  4. Under what circumstances may alternative requirements be used?

    Notwithstanding the fact that the NPRM wanted to delete the ability for employers to offer alternative requirements, the final regulations still allow for alternative experience requirements which are “substantially equivalent to the primary requirement” of the job opportunity. 53 However, if the alien only qualifies based on the alternative requirements, the employer must state that any suitable combinations of education training or experience are acceptable.54

5. What are the recruitment requirements?

Under the old regulations, the basis for a supervised recruitment application was a 3-day ad.55 This ad needed to be placed in a paper of general circulation. In addition to the ad, a notice had to be posted on the employer’s premises, and a job order was placed with the SWA.

More recently, to qualify for RIR, the recruitment efforts evolved around a concept of “pattern of recruitment.” Print ads were still the backbone of this process. However, other recruitment efforts were also encouraged such as the Internet, California Job Bank/America’s Job Bank, additional general ads, etc.56

Under the PERM regulations, all recruitment will now be done prior to filing. (There is a provision for supervised recruitment if an audit reveals such is necessary. That will be addressed later). Although the preamble to the PERM regulations tries to distance the RIR procedure from the PERM regulations, similarities cannot go unnoticed. However, under the PERM regulations, there is no “pattern of recruitment.” Instead, there are very specific requirements which, if met, will meet the recruitment test.57

The recruitment required depends on whether the occupation in the job offer is a “professional” or “nonprofessional” occupation.

  1. What are the recruitment requirements for non-professional positions?

    If the application is for a nonprofessional occupation, the employer, at a minimum, must 1.) Place a job order with the local SWA serving the area of intended employment for a period of 30 days, and 2.) place two Sunday newspaper advertisements.58 Originally, it was proposed that these newspaper advertisements would have to be at least 28 days apart. There is no such requirement in the final PERM regulations. Therefore, two newspaper advertisements on two consecutive Sundays would meet this requirement. The advertisements and job order must be placed at least 30 days prior to but not more than 180 days before the filing of the labor certification application.59 (In addition, notice of the intent to file a labor certification must be posted for 10 consecutive business days or given to the bargaining representative, but such notice is not considered “recruitment.”)60

  2. What are the recruitment requirements for professional positions?

    Recruitment for professional positions is somewhat more involved. (A list of “professions” appended to the preamble by the Department of Labor is a list of occupations requiring “professional recruitment” efforts.61 This list was not put in the regulations since it may be changed in the future and the Department of Labor does not want to go through the difficult regulatory procedure if it wants to make such changes.)

    If an occupation fits within a professional category, there are 2 steps in the recruitment efforts: 1. Mandatory steps; and 2. Additional recruitment steps.

    Under the mandatory recruitment, the employer must place a job order and two print advertisements, just as is required for nonprofessionals. These recruitment steps must be taken at least 30 days, but no more than 180 days, before the filing of the application.62 As with the nonprofessional recruitment, the job order must be placed with the SWA for a period of 30 days, and the newspaper advertisements must be placed on 2 different Sundays in a paper of general circulation.63

    If the job offer requires experience AND an advanced degree, and a professional journal would normally be used to advertise the job opportunity, the employer may place an advertisement in the professional journal in lieu of one of the Sunday advertisements.64 However, the language implies that this is only suggested, not required.

    In addition to the mandatory steps, additional recruitment steps are required for professional positions. The employer must use 3 additional recruitment steps from a list of 10 alternatives provided by the PERM regulations.65 These include:

    1. Job fairs;
    2. Employer’s website;
    3. Job search website other than the employer’s;
    4. On-campus recruiting;
    5. Trade or professional organizations/publications;
    6. Private employment firms;
    7. Employee referral programs with incentives;
    8. Campus placement offices (While the preamble limits this to opportunities which require a degree but no experience, the final regulations are silent on this point);66
    9. local and ethnic newspapers (The preamble limits this “to the extent they are appropriate for the job opportunity);
    10. Radio and television advertisements.67

    The additional language in the preamble gives the impression that merely following the letter of the regulations may not be enough. DOL appears to be reserving to itself the ability to look qualitatively at the recruitment steps, and, if not satisfied with the spirit of the steps, may require additional recruitment steps. For example, if an employer chooses to advertise in a local newspaper as one of the recruitment steps, DOL may, based on currently unknown criteria, reject the step as not a bone fide attempt to recruit U.S. workers.

6. When must recruitment take place?

Recruitment must take place between 30 and 180 days prior to filing. In the case of a professional, however, one out of the three additional steps may take place within 30 days of the filing of the labor certification application.68

It would appear that the minimum amount of time required in order to properly recruit and file a labor certification application under the PERM regulations could be as little as 60 days. First, the job order placed with the SWA must be for a period of 30 days.69 (This, by the way, is 30 calendar days.) Second, the job order step must be finished at least 30 days prior to the filing of the application.70 Therefore, since the end of the 30 day job order period must be at least 30 days from the date of filing of the labor certification, it will take a minimum of 60 days to file. During the 30-day job order, 2 Sunday ads can be placed. These ads, too, must also be placed at least 30 days before filing. For professionals, the 3 additional recruitment steps could be made within the 30-day job order timeframe.

Think about it. In a good case, it would take 60 days to file and 45 to 60 days to get an approval. Theoretically, at least, a person could be filing for adjustment of status within 4 months!

7. What are the print ad requirements?

The PERM regulations at 20 CFR§656.17(f) are specific as to what must be contained in the newspaper or professional journal advertisement:71

  1. The name of the employer;
  2. Directions where to send resumes (if appropriate to the occupation) or where to report to the employer;
  3. A description specific enough to apprise U.S. workers of the job opportunity (a descriptive job title such as Accountant, School Teacher, or Software Engineer would appear to be sufficient);
  4. The geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.

Specific job requirements and duties are not required. According to a FAQ published by the DOL in early March, as long as the employer can demonstrate a logical nexus between the ad and the position on the application, the employer has met the requirement of apprising applicants of the job opportunity.72 That same FAQ encourages a description of the vacancy, which may mean more than a one or two word job title. However, that is not clear.73 If the job requirements or duties are listed, they must not exceed the job requirements or duties listed on the ETA Form 9089.

While a salary does not need to be listed in the ad, if a wage is put in the advertisement, it must not be lower than the prevailing wage rate.74

The preamble makes it clear that applicants can be requested to send their resume to a particular post-office box and that the employer may use a job identification code to help determine which applicants are responding to the specific job opportunity. For example, in an ad where the employer lists multiple positions, each position can be given a job code to assist the employer in tracking applicants to the correct job opportunity.

A specific ad such as the following, though minimal, should be sufficient to meet the PERM requirements:

Accountant in Fremont. Send resume to: XYZ, Inc. Box LC, SF, CA 94104

Of course, while a small ad will save costs, an ad which details specific job duties and/or the minimum requirements may be prudent, to limit the number of responses from unqualified applicants, the sheer volume of which may create a paper handling nightmare.

8. What information must be contained in each recruitment source?

Although the PERM regulations are specific about what information has to be included in the printed ads, they do not identify what information has to be included in each of the other recruitment steps. Of course, some recruitment efforts lend themselves to giving more information than others. For example, a notice on an employer’s website has the opportunity for being more detailed than a newspaper ad, due, at least in part, to cost factors. At a minimum, the information required for advertisements in newspapers should be communicated in each additional recruitment step:75

  1. The name of the employer;
  2. Directions on how to contact the employer;
  3. A description of the job specific enough to apprise U.S. workers of the job opportunity; and
  4. The geographic area of employment

9. What documentation of recruitment efforts must be assembled and kept?

The regulations are very specific as to how an employer can document the recruitment steps. For each mandatory or additional recruitment step, specific documentation is listed:

  • Newspaper ads-A copy of the page in which the advertisement appeared;76
  • Job order placed with the SWA-The start and end dates of the job order placed on the application;77
  • Job fairs-Brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair;78
  • Employer’s website-Dated copies of pages from the site that advertised the occupation involved in the application;79
  • Job search website other than the employer’s-Dated copies of pages from one or more website that advertise the occupation involved in the application;80
  • On-campus recruiting-Copies of the notification issued or posted by the college or university’s placement office naming the employer and the date it conducted interviews;81
  • Trade or professional organization-Copies of pages of newsletters or trade journals containing advertisements of the occupation involved in the application;82
  • Private employment firms-Documentation sufficient to demonstrate the recruitment has been conducted by a private firm such as copies of contracts and copies of advertisements placed by the private employment firm for the occupation involved in the application;83
  • Employee referral program with incentives-Dated copies of employer’s notices or memoranda advertising the program and specifying the incentives offered;84
  • Campus placement offices-Copy of the employer’s notice of job opportunity provided to the campus placement office;85
  • Local and ethnic newspapers-Copy of the page in the newspaper that contains the employer’s advertisement;86 and
  • Radio and television advertisements-Copy of the employer’s text of the employer’s advertisement along with written confirmation from the radio or television station stating that the advertisement was aired.87

10. What are the notice requirements?

The regulations require that a notice be posted regarding the filing of the application for permanent employment certification. However, this notice is not considered part of the recruitment effort. This posting is to comply with the statutory requirements provided by Section 122(b) of IMMACT90. If there is a bargaining representative, notice must be given to the bargaining representative.88 If there is no such representative, the notice is posted at the employer’s facility or location of employment.89

When a posted notice is used, it must be posted for at least 10 consecutive business days.90 This differs from the previous regulations which only required that the notice be posted 10 consecutive calendar days. This posting requirement has been in effect for quite some time. However, the PERM regulations go further and require that the employer must, additionally, publish the notice in any and all in-house media. 91 Employers may do so in accordance with their normal procedures used for the recruitment of similar positions in the employer’s company. The Department of Labor uses an example that they would not expect a posting in an employer’s publication which is devoted to health and safety issues, if job vacancies were not normally included in that publication. Along the same line, if advanced executive or management positions are not normally posted in an employer’s in-house media, it would appear that not doing so would be excused as not one of the employer’s “normal procedures.”92 The notice must contain the following:

  1. A statement that the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity;
  2. That any person may provide documentary evidence bearing on the application to the certifying officer of the Department of Labor; and
  3. The notice must provide the address of the appropriate certifying officer.93

The notice must be given for 10 business days between 30 and 180 days before filing the application.94 In addition, the notice must:

  • Contain the name of the employer;95
  • Direct applicants to report or send resumes to the employer (this requirement belies the Department of Labor’s claim that this notice is not a recruitment vehicle! Or else, it was an oversight since the regulations do not require that responses from the posting be included in the recruitment report);96
  • Provide a description specific enough to apprise U.S. workers of the job opportunity;
  • Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements or where the applicant will likely have to reside to perform the job opportunity;97 and
  • State the rate of pay. (However, the rate of pay may be listed as a range as long as: 1. The lower end is at least the prevailing wage; and 2. The top end is the actual salary of the alien [or higher], if the alien is presently employed in that position.)98

11. Will a recent layoff disallow a company from recruiting?

The mere fact of a layoff will not preclude an employer from filing an application. However, if there has been a layoff by the employer within 6 months preceding the filing of the application, the employer must demonstrate that it has notified and considered all potentially qualified, laid off U.S. workers of the job opportunity and the results of the notification and consideration.99 This notification must also be sent to laid off employees in related occupations.100 A related occupation is defined as any occupation where the U.S. worker performs a majority of the essential jobs involved in the occupation for which certification is sought.101 Notification does not need to go to potentially qualified, laid off employees of other employers.

12. What are the requirements if the Department of Labor thinks the alien may have influence or control over the job opportunity

The PERM regulations have special requirements under a variety of ownership situations where the CO may think that the alien has undue influence over the labor certification process. The regulations identify 3 situations where this may occur:

  1. In a closely held corporation or partnership in which the alien has an ownership interest;
  2. If there is a familial relationship between the alien and shareholders, corporate officers or partners; or
  3. If the alien is one of a small number of employees.102

A closely hold corporation is defined by the PERM regulations as “a corporation that typically has relatively few shareholders and whose shares are not generally traded in the securities market.” 103 Differing from the ETA 750, the Form ETA 9089 asks questions about the number of employees, any ownership interest by the alien or any familial relationship. If there is an audit, the employer must be able to demonstrate the existence of a bone fide job opportunity by submitting the following supporting documentation:104

  1. Documents that establish the business entity (for example, Articles of Incorporation, Partnership Agreement, etc.);105
  2. A complete list of corporate officers, shareholders or partners and their titles and positions in the company and a description of their relationship with each other and to the alien;106
  3. The financial history of the company, including the amount invested by each officer and the amount, if any, invested by the alien beneficiary;107
  4. The name of the person with primary responsibility with hiring for positions within the company and the names of others having control or influence over the hiring decision;108
  5. If the alien is one of 10 or fewer employees, the employer must document any family relationship between the employees and the alien.109

The previous regulations did not mention alien ownership or influence over hiring decisions, nor were there questions on the form about these factors. However, if in response to questions from the SWA or DOL, DOL discovered ownership or potential hiring influence, DOL would normally deny such applications, claiming that with these factors present, a bona fide job opportunity was precluded.110 Form ETA 9089 asks specifically about the size of the company, whether the alien has an ownership interest and whether the alien is related to the owners or officers. While the PERM regulations provide a list of documentation that can be submitted, this is still an area of interest to DOL, and approved labor certification applications in such situations likely will not be common. In fact, merely submitting the documentation that DOL could request may be sufficient evidence, in the mind of the certifying officer, to deny the application.

13. Are the ads supposed to look “real-world”?

It is clear from the PERM regulations that the newspaper ad requirements are more in line with real-world recruitment. No wage is necessary. At a minimum the ad only must contain the name of the employer, directions on how to communicate with the employer, a job description sufficient enough to apprise U.S. workers of the job opportunity, and the geographic area where the job opportunity is located.111 The preamble makes it clear that the long ads required under the old regulations are a thing of the past.

14. What documentation must be kept in order to document recruitment efforts and responses to recruitment?

The PERM regulations require that the employer prepare a recruitment report, signed by the employer.112 This report will not be filed with the ETA 9089. It will only be submitted if requested in an audit. Due to the importance of the recruitment report, it is absolutely imperative that an attorney ensures that the employer prepares a proper recruitment report. This should be done at the time of recruitment, when information and facts are fresh. If done later, there will be considerable room for error or misstatement or, even worse, inability to respond to the audit request in time, which would mean a denial as well as a requirement of supervised recruitment for up to two years.

The recruitment report must minimally contain four items:

  1. A description of the recruitment steps undertaken;
  2. The number of resumes or applications received;
  3. The number of people hired from the recruitment efforts;
  4. The number of U.S. workers rejected, categorized by lawful job related reasons for rejection.113

If the certifying officer feels that there is a need to review the report, then it will be requested. After reviewing the report, the certifying officer may request the resumes, sorted by reasons for rejection.114

The regulations are clear that if a person is rejected in the recruitment report for lacking skills necessary to perform the duties but the skills could be acquired during a reasonable period of on-the-job training, this will not be considered a lawful, job-related reason for rejection.115

15. What are valid reasons for rejecting U.S. workers?

The PERM regulations do not specifically give a list of valid reasons for rejecting U.S. workers. However, the PERM regulations are clear in that the employer cannot disqualify a U.S. worker who is able, willing, qualified, and available for and at the place of the job opportunity.116 Therefore, we can assume that one could not reject a U.S. applicant if s/he met all the minimum requirements of the job opportunity. It also seems apparent that an employer could reject a U.S. worker who was not willing to accept the exact job opportunity as set forth in the Labor Certification, for example, if the U.S. worker found the wage/salary or place of employment unacceptable. As long as the employer made certain the U.S. worker was unwilling to accept the job opportunity as specifically set forth in the labor certification application, this would most likely be deemed a lawful rejection.

Moreover, if the domestic worker met all the minimum requirements of the job opportunity, but was unavailable to start employment until six months in the future, the employer could lawfully reject the U.S. worker as being unavailable for the job opportunity. Note, that BALCA decisions under the prior regulations support the above arguments.117 However it is unclear at this time how much weight BALCA decisions or even case law will have under the PERM regulations.

  1. May a U.S. worker be disqualified even if s/he does not meet all of the minimum requirements?

    The prior regulations, BALCA decisions, and a Circuit Court holding accept the concept that an employer cannot reject a U.S. worker who, by a combination of education, experience, training, is able to perform, in the normally accepted manner, the duties involved in the occupation as customarily performed by other U.S. workers similarly employed118. The PERM regulations have adopted this same language in Section 656.24 of the PERM regulations and expanded this concept to provide that the U.S. worker is qualified for the job opportunity if s/he can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on the job training.119 The question that every employer will ask is “How long is a reasonable period of on-the-job training?” The preamble to the PERM regulation states that the drafters did not define the term “reasonable period of on the job training” because it was deemed that a “reasonable period of on the job training” would vary by occupation, industry, and job opportunity.120

  2. How detailed must the reasons for rejection be?

    While the recruitment report must describe the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections, it is doubtful that the PERM regulations require an in-depth or detailed recruitment report outlining the reasons for rejection U.S. workers. If the PERM regulations sought to require a “detailed” description of the recruitment procedures, the regulations would have specifically required that the recruitment report be outlined in detailed as it has under Section 656.21 “Supervised Recruitment” 121 and under Section 656.18 “Optional special recruitment and documentation procedures for college and university teachers.”122 However, the language of the PERM regulation does not specify that the reason for rejection of a U.S. worker must be detailed, only that a job- related reason for rejection is required. 123

  3. Can recruitment prior to PERM implementation be used?

    The PERM regulations do not state that recruitment prior to the PERM implementation cannot be used. As long as the recruitment meets the criteria as set forth in Section 656.17, the certifying officer should not deny the Labor Certification for conducting recruitment prior to the implementation of the PERM regulations.

16. Who Qualifies For Schedule A Processing?

“Schedule A” is a list of occupations for which a determination by the Department of Labor has been made that there are not sufficient U.S. workers available in the United States and the wages and working conditions of U.S. workers will not be adversely affected by the employment of aliens in those occupations. The Department of Labor has identified four such occupations:124

  1. Physical Therapists
  2. Professional Nurses
  3. Aliens of Exceptional Ability in the Sciences or Arts (including college and university teachers)
  4. Aliens of Exceptional Ability in the Performing Arts.

Physical Therapists-These are persons who possesses all of the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy.125

Professional Nurses-These are persons who will be employed as a professional nurse and who either: 1.) Has a certificate from the Commission on Graduates of Foreign Nursing Schools (CGFNS), 2.) Holds a permanent full and unrestricted license to practice professional nursing in the state of intended employment or 3.) Has passed the National Council Licensure Examination for Registered Nurses (NCLEX-RN).126

Exceptional Ability in the Sciences or Arts (Including college and university teachers)-In order to qualify for this classification, persons must have been practicing their Science or Art during the year prior to the filing of the labor certification application and intend to practice the same Science or Art in the United States. A “Science or Art” means any field of knowledge and/or skill with respect to which colleges and universities commonly offer degrees.127 However, an alien does not have to have studied at a college or university in order to qualify for this classification.

Documentation to establish that a person is of exceptional ability in the sciences or arts must include evidence of widespread acclaim and international recognition by recognized experts and documentation showing the alien’s work in the field during the past year required, and the alien’s intended work in the United States will require, exceptional ability.128 In addition, documentation of two out of the following seven groups must be submitted:

  1. Receipt of internationally recognized prizes or awards;
  2. Membership in international associations which require outstanding achievement of their members;
  3. Published material in professional journals about the alien;
  4. Evidence of the alien’s participation as a judge of the work of others;
  5. Evidence of the alien’s original scientific or scholarly research contributions of a major significance;
  6. Evidence of the alien’s authorship in international professional journals or professional journals with an international circulation;
  7. Evidence of the display of the alien’s work at artistic exhibitions in more than one country.129

Exceptional Ability in the Performing Arts-This category has been added by the PERM regulations. It applies to aliens of exceptional ability whose work during the past twelve months required, and whose intended work in the United States will require, exceptional ability.130 Documentation to establish that the alien qualifies for this category includes:

  1. Documentation attesting to current, wide spread acclaim and international recognition and the receipt of internationally recognized prizes or awards for excellence;
  2. Published material by or about the alien;
  3. Evidence of earnings commensurate with the claimed level of ability;
  4. Playbills and star billings;
  5. Documentation of the outstanding reputation of theatres, concert halls, etc. in which the alien will appear or has appeared; and/or
  6. Documentation attesting to the outstanding reputation of theatres or repertory companies, ballet troupes, orchestras, or other organization in/or with which the alien has performed during the past year in a leading or starring capacity.131

All labor certification applications for Schedule A occupations are filed directly with the US CIS.132 Physical Therapists and Professional Nurses may not apply under the basic certification process of §656.17. However, applications for persons of exceptional ability in the Sciences or Arts or exceptional ability in the Performing Arts may also be filed under the basic certification process, should their Schedule A applications be denied.133

17. What Provisions Do The PERM Regulations Make For College & University Teachers?

There are three provisions made for college and university teachers:

  1. Schedule A

    Those college and university teachers which fall within the exceptional ability in the Sciences or Art category can make use of the Schedule A processing. As mentioned previously, such college & university teachers will file a labor certification application directly with the CIS. In order to qualify, the teacher must have been practicing his or her Science or Art during the year preceding the filing of the application and must intend to continue to practice the same Science or Art in the United States.

  2. Special Recruitment and Documentation Procedure for College and University Teachers

    Under the previous regulations, college and university teachers were given special consideration. This special consideration continues in the PERM regulations. Although it was suggested by commentators that these special procedures be expanded to include high-level and research positions as well as primary secondary school teachers, 134 the final regulations continue to apply special recruitment procedures only to college and university teachers.135

    The main requirements for special recruitment processing for college and university teacher are:

    1. Documentation that the alien was selected for the job opportunity in a competitive recruitment and selection process;136

    Documentation of the competitive recruitment and selection process must include:

    1. A statement signed by an official who has actual hiring authority, outlining, in detail, the complete recruitment procedures undertaken;
    2. A final report of the faculty, student, and/or administrative body making the recommendation or selection of the alien;
    3. A copy of at least one advertisement for the job opportunity in a national professional journal;
    4. Evidence of any other recruitment sources utilized; and
    5. A written statement attesting to the degree of the alien’s educational or professional qualifications and academic achievements.137

    2. Documentation stating that the alien was found to be more qualified than any of the U.S. workers who applied.

    The competitive recruitment and selection process must take place within 18 months of the filing of the labor certification application. 138 in the past, if more than 18 months had passed since the competitive recruitment and selection process, the college or university could conduct another competitive recruitment and selection process to, once more, come within the 18-month deadline. 139 At the present time this still appears to be possible.

  3. Basic Labor Certification Process

    If an employer does not satisfy the special recruitment procedures, then a labor certification filed under the basic labor certification process can be utilized. All of the requirements under §656.17 must be met, except a labor certification may be approved if the alien is “found to be more qualified than each U.S. worker who applied for the job opportunity.” 140

18. What are the changes in the Prevailing Wage request process?

In December 2004, Congress enacted major changes to the method in which prevailing wages were calculated. This enactment, known as the Consolidated Appropriations Act, 2005 made two significant amendments to the INA (Section 212(p)(3), 8 U.S.C. 1182(p)(3)). The first change was the elimination of the 5 percent variance so that, effective March 8, 2005, employers had to pay 100% of the Prevailing Wage Determination for labor certification cases. The second significant change was the creation of four prevailing wage skill levels. When the Secretary of Labor uses, or makes available to employers, a prevailing wages survey, the survey must provide at least 4 levels of wages commensurate with experience, education, and the level of supervision. However, if the government survey has only 2 levels, 2 intermediate levels may be created by dividing by 3 the difference between the two levels offered, adding the quotient thus obtained to the first level, and subtracting that quotient from the second level.

Under the PERM regulations, the State Workforce Agency (SWA) determines the prevailing wage by using: 1) a collective bargaining agreement (CBA) if applicable; 2) the Occupational Employment Statistics Survey (OES); 3) an alternative survey; or 4) the Davis-Bacon Act (DBA)141 or McNamera-OHara Service Contract Act (SCA)142, if applicable.143 As with the prior labor certification regulations, the PERM regulations provide that if the job opportunity is covered by a CBA that was negotiated at arms length between the union and the employer, that wage will be considered the Prevailing Wage, except for jobs in institutions of higher education and research entities, and for professional athletes.144 However, under the PERM regulations, the employer is required to request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment.145

However, if the job opportunity is not covered by a CBA, the prevailing wage shall be determined by using the OES survey, unless the employer provides an acceptable alternative survey in accordance with the PERM Regulations.146

Another interesting change is made in section 656.40(b)(4) which states that an “employer may utilize a current wage determination in the area under the Davis-Bacon Act,147or the Mc Namara-O’Hara Service Contract Act.148 Under the prior regulations, if the DBA or the SCA applied, the employer was required to use the wage as prescribed under those Acts. However, the PERM regulations have eliminated the mandatory use of the DBA and SCA, thus allowing the employer more flexibility to use the method which has a lower prevailing wage or otherwise best fits the company’s needs. 149

Lastly, a notable change in determining prevailing wage is that discretionary bonuses, commissions, and cost-of living allowances can be included in determining the wage offered by the employer as long as the payment is guaranteed.150 However, these must be paid on a weekly, bi-weekly or monthly basis. 151

19. How should the PWDR form be completed?

Each SWA is charge of and provide the Prevailing Wage Determination Request (PWDR) forms and information regarding completing the PWDR. Some states SWA’s have used the SOC on the PWDR Forms and therefore the PWDR forms and the procedures for completing the forms should remain mostly unchanged. However, in those States which have only recently switched over from the use of the DOT to that of the SOC, one should look to the local SWA websites for the current PWDR forms. AILA has assembled the state forms and procedures for most states and these are available on AILA infonet.

20. Can alternative surveys be used and, if so, under what circumstances?

Alternative surveys and sources can be used under the PERM regulations for determining prevailing wages152 The employer must submit a survey or other wage data that provides the SWA with enough information about thesurvey methodology, sample size and source, sample selection procedures, and survey descriptions.153

Specifically, the survey submitted to the SWA must be based upon recently collected data under the following criteria: 1) the published survey must have been published within 24 months of the date of submission to the SWA, 2) the survey must be the most current edition of the survey, and the data upon which the survey is based must have been collected within 24 months of the publication date of the survey; and 3) The employer’s survey must be based on data collected within 24 months of the date it is submitted to theSWA.154

Under the prior regulations, surveys had to use a weighted average and were based upon an arithmetic mean.155 The PERM regulations allow the use of surveys containing only a median wage. However, if the survey provides both the median and the mean, then the mean must be used.156

21. How will audits act in the place of NOF’s?

Under the previous regulations, a certifying officer who was not yet ready to approve or deny a labor certification application had the Notice of Findings (NOF) as his/her primary tool. The purpose of the NOF was to allow the certifying officer to identify alleged deficiencies in the application and point out the corrective actions which were necessary in order to have the case approved. If the deficiencies were not overcome, the labor certification was denied. If they were overcome, the certifying officer would issue an approval. The NOF’s were an attorney’s nightmare. They were filled with boilerplate language, lack of clarity, and requests for evidence or documentation which often appeared irrelevant, overreaching, and unnecessary.

The PERM regulations replaced the Notice of Findings procedure with an audit procedure. The proposed regulations indicated they would be primarily standardized, computer-generated documents.157 The proposed regulations also provided a period of 21 days to reply to an audit letter.158

The Department of Labor has concluded that it would be considerably easier for employers to respond to an audit letter than it was to rebut a Notice of Findings. The preamble information suggests three reasons for this:

  • The regulations state what documentation must be assembled, maintained, and ready to submit in response to an audit letter;
  • A prudent employer will gather the documentation prior to filing and have it available in anticipation of a possible audit; and
  • Employers will be able to contact DOL if they have questions about the audit letter.159

The DOL has not made public factors that will trigger an audit letter.160 In addition, an audit may be requested merely using random sampling to techniques.161 However, it is clear from the PERM regulations that an audit letter can be issued for quality control purposes.

An audit will generally be a two-step procedure. The first step will involve a request for information and/or documentation.163 The reply must be submitted within 30 days.164 A substantial failure to provide the required information and/or documentation will result in the application being denied.165 In addition to the denial, the certifying officer may determine that the employer must conduct supervised recruitment in future labor certification applications for up to two years.166

It is possible that the documentation requested will be sufficient for the certifying officer to make a decision as to whether to deny or approve the PERM application. If the certifying officer is not ready to approve the labor certification, the audit process moves on to the second step: supervised recruitment.

  1. What will trigger an audit?

    No audit criteria are described in the final regulations, nor is DOL talking about criteria. However, it is fairly safe to say that some or all of the following criteria will be among those which may lead to an audit:

    1. A ‘wrong’ answer to “efficiency” questions on the Form ETA 9089, that is, those questions that have a ‘yes’ or ‘no’ response.
    2. Labor market data reflecting potentially available U.S. workers.
    3. A small company, which may be unduly influenced by the alien for whom certification is sought.
    4. A company that may not have the financial resources to pay the salary.
    5. Inconsistencies in the paperwork reflecting an alien who does not appear to meet the minimum requirements.
    6. Requirements which are outside the O*NET SVP.
    7. Requirements which must be justified by a business necessity argument.
    8. Where a language is part of the minimum requirements.

    The fact that the position is encumbered (that is, already filled by the alien for whom the labor certification is being filed) is not a controlling factor for an audit since, as the Department of Labor has pointed out, the overwhelming percentages of these jobs are encumbered.167 However, this factor has not been ruled out as one of the criteria which, in combination with others, could influence the decision to have an audit, for example in combination with an “alien influence” issue.168

    An employer will be given 30 days to respond to the audit, with only one extension of 30 days allowed, at the discretion of the certifying officer. 169 Because this is a relatively short period of time, it is incumbent to advise the employer to have the documentation prepared, by the time of filing the labor certification. Trying to research, assemble, and submit the necessary documentation after an audit request will create frustration, delays, and quite possibly a denial.

    The regulations are clear in identifying what supporting documentation must be available for the audit. This documentation includes:

    1. Recruitment documentation, including mandatory steps (two print advertisements and a 30-day job order), and, if the position is one of the listed professional positions, documentation of additional recruitment steps;170

    2. A recruitment report, signed by the employer, describing:

      ♦ The recruitment steps;
      ♦ The results, including:
      ♦ Number of hires;
      ♦ Number of U.S. Workers rejected, categorized by lawful job-related reasons;
      ♦ Attached to the recruitment report must be the U.S. applicants’ resumes or applications, sorted by reasons for rejection.

    3. Documentation of the business necessity for any requirements which are beyond the O*NET job zone;

    4. If a combination of occupations, documentation that:

      ♦ The employer normally employed persons for that combination of occupations; and/or
      ♦ Workers customarily perform the combination of occupations in the area; and/or
      ♦ The combination job opportunity is based on a business necessity.

    5. If the alien’s experience has been gained wholly or in part by experience with the petitioning employer:

      1. documentation that the experience was gained in a position not substantially comparable to the position for which certification is being sought; or
      2. Documentation that it is no longer feasible to train a worker to qualify for the position.

    6. In live-in situation, there must be documentation of two working parents and young children and/or existence or erratic work schedule, etc.

    7. If layoffs within the last six months, documentation that the employer has notified and considered all potentially qualified, laid off U.S. workers.

    8. If a closely hold corporation in which the alien has an ownership interest, documentation of a bone-fide job opportunity.

    9. Posted notice

  2. What will the procedure be for an audit?

    If the employer’s application is selected for audit, the certifying officer shall issue an audit letter. It is not known at this time if the letter will be issued by mail or by electronic means.

    The regulations clearly state that the audit letter will specify the documents that must be submitted by the employer within a 30-day period. If the required documents are not sent in timely, the application will be denied and all rights to file an appeal to BALCA will be waived.171 Currently, when a Notice of Findings is issued, the certifying officer has to specify the deficiency or reason for the issuance of a NOF. However, under the PERM regulation, the certifying officer is not required to explain, even briefly, the reason for the issuance of an Audit Letter. Please note, even though the PERM regulations allow for one extension of up to 30 days, it is up to the certifying officer’s discretion whether to grant the employer an extension.172 It is anticipated by DOL that this discretion will not be exercised very often, the reasons must be compelling.173

    A substantial failure by the employer to provide required documentation will result in that application being denied and may lead to a determination by the certifying officer to require the employer to conduct supervised recruitment for up to the two years for future filings of labor certifications.174 “Substantial failure” is not defined. However, failure to provide any or most of the documents as requested would certainly fall within this category.

    The PERM regulations state that the certifying officer, whether in the context of an audit or otherwise, may request supplemental information and/or documentation; or require the employer to conduct supervised recruitment.175

22. What is the role of BALCA review under PERM?

Review by the Board of Alien Labor Certification Appeals (BALCA) is the final administrative remedy for an employer seeking review of a certifying officer’s determination to deny or revoke Labor Certification. If the Labor Certification is denied or revoked, the employer is given 30 days from the date of the determination to request a review with BALCA.176 As in the previous regulations, once the appeal is made to BALCA, there is no specified time limit for BALCA to review the labor certification. It is anticipated that appeals to BALCA will be less plentiful than in the past for two reasons: 1) There is no 6-month prohibition from refiling as there was under the old regulations, and 2) The employer is precluded from refiling as long as the appeal to BALCA is pending.

PERM requires that the BALCA make one of three decisions; 1) affirm the denial; 2) direct the certifying officer to grant the certification; or, 3) direct that a hearing on the case be held. The regulations no longer allow BALCA to remand a case. 177

There is one other avenue that an employer has if the labor certification is denied: a request for reconsideration. 178 The previous regulations had no provision for reconsideration, though the practice came into usage anyway. The PERM regulations specifically provide for reconsideration requests but allow the certifying officer to either reconsider the determination on, or to treat the request for reconsideration as a request for BALCA review, and merely to forward the case to BALCA, without any reconsideration.179

Finally, BALCA has been granted the authority to review a C.O.’s prevailing wage determination.180 In order for this to happen, however, the employer must first request a review of the SWA’s prevailing wage determination by the C.O. The employer must object to the C.O.’s decision and file a request for review with the C.O. within 30 days of the date of the decision.181 While the regulations require the C.O. to IMMEDIATELY assemble an indexed appeal file, the regulations do not specify when the C.O. must actually send the appeal file nor is BALCA mandated to have the appeals decided in a timely manner. In fact, it appears that such appeals will be handled along with labor certification application denials. That being the case, due to the lengthy time it will take to adjudicate such reviews, it appears that requests for review of prevailing wage determinations will have limited appeal.

23. Will BALCA decisions have precedential value?

Neither the old regulations nor the PERM regulations grant any precedential value to BALCA decisions. However, BALCA decisions have had a de facto precedential value. They are frequently cited in writings, decisions, and presentations. In fact, a number of them were cited and referred to in the preamble including, among others, H.C.LaMarche Enterprises, Inc. [87-INA-607, Oct. 27, 1998 (en banc)] (ad placed under inappropriate heading or key word is considered a failure to make good faith efforts to recruit) Information Industries [88-INA-92, Feb. 9, 1989 (en banc)] (Business necessity standard established) Matter of Francis Kellogg [99-INA-465, Feb 2, 1998 (en banc)] (Alternative requirements must accept any and all experience that would reasonably prepare an applicant for the position), Modular Container Systems [89-INA-28, July 16, 1991 (en banc)] (Criteria established regarding whether the alien is one of a small number of employees). En banc decisions have generally been accepted as de facto precedents in cases with similar circumstances and issues. Since the decisions that are decided en banc have been decided by all the judges, should the same or similar issue be brought before any of the BALCA panels, the decision would most likely follow the en banc decision. Therefore, in order not to waste resources, the C.O’s do not, normally, adjudicate in opposition to en banc decisions.

On the other hand, panel decisions do not necessarily carry the weight of en banc decisions since panels can differ in their approach to the same question. This does not preclude them from being cited by both attorneys and the Department of Labor in support of various positions. However, while such references are persuasive, they are not necessarily authoritative.

24. Under what circumstances may a labor certification be revoked?

The certifying officer can revoke a Labor certification application if s/he finds that the Labor Certification approval was not justified.182 The PERM Regulations do not specify reasons why the approval may not be justified. However, a finding of fraud and misrepresentation would be among the top reasons for the issuance of a Notice of Intend to Revoke. In addition, it would appear that DOL could revoke a Labor Certification Application if it was determined that the recruitment or postings were not executed in accordance with the PERM regulations, a U.S. worker was unlawfully rejected or that the alien would have an adverse effect upon the wages and working conditions of U.S. workers similarly employed.

It should be noted that the PERM Regulations do not specify a limit on how long after the Labor Certification is certified that DOL is able to issue a Notice of Intent to Revoke. However, since the PERM regulations only require an employer to keep documents related to the labor certification for a period of up to five years, it would certainly be unreasonable and unjust to issue a Notice of Intent to Revoke more than five years after issuance of the Labor Certification.

25. Under what circumstances are substitutions allowed?

While the NPRM specifically allowed for the substitution of alien beneficiaries on approved labor certifications, the final regulations contained no such language. However, such a practice was not prohibited either. The language of the final rule left the possibility open by reiterating that the approved labor certification application is valid for a specific job offer at the are of intended employment.183 It did not limit the approval to a specific alien. The preamble acknowledged that the DOL’s operating practice after Kooritzky v. Reich184 was to allow for substitution, but expressed concerns about the sale, barter, or purchase of approved labor certifications. At this time, DOL trusts that PERM’s mechanisms to check the bona fides of the employer will be enough to thwart the practice of filing fraudulent labor certification applications which will be sold later. In addition, the preamble indicates that there may be a specific regulation about this in the near future.185

Edward R. Litwin is the sole shareholder of Litwin & Associates, A Law Corporation, located in South San Francisco, California. He is certified by the California State Bar Board of Legal Specialization as a Specialist in Immigration & Nationality Law. He was an elected member of AILA’s Board of Governors for 10 years and has held numerous appointed positions. He is included in Best Lawyers in America, An International Who’s Who of Corporate Immigration Lawyers, Who’s Who in American Law, Who’s Who in Executives & Professionals, National Registry of Who’s Who and Strathmores Who’s Who. He is married and has 4 sons who just call him Dad and could care less about any Who’s Who!

Marcine A. Seid practices immigration and nationality law in San Jose, California. She is a former chair of the AILA Santa Clara Valley Chapter and is a frequent speaker for AILA’s local and national conferences. Currently, she is serving as the AILA Santa Clara Valley Co-liaison for the U.S. Department of Labor, Region VI, and as a member of AILA’s Administrative Appeals Office Liaison Committee. She also has served as a member of AILA’s California Service Center Liaison Committee (two term) and has chaired a number of AILA’s educational conferences.

1 PERM is an acronym for the Program Electronic Review Management. See 69 Fed. Reg. 777326 (Dec. 27 2004).

2 69 Fed. Reg. 30466 (Dec. 27 2004).

3 20 CFR §656.17(h)

4 See information on O*NET at

5 20 CFR§656.17(l)

6 20 CFR§656.21(e)(4)

7 69 Fed. Reg. 777327 (Dec. 27 2004)

8 20 CFR§656.17(f)

9 American Competitive in the 21st Century Act of 2000, Pub.L. No.106-313,124 Stat.1251.

10 20 CFR§656.29 (old regulations)

11 20 CFR§656.21(e)(5)

12 Consolidated Appropriations Act of 2005 amending INA 212(p)

13 20 CFR §656.40(b)(3)

14 69 Fed. Reg. 777326 (Dec. 27 2004)

15 69 Fed. Reg. 777330 (Dec. 27 2004).

16 69 Fed. Reg. 777328 (Dec. 27 2004)

17 20 CFR§656.20

18 20 CFR§656.20(a)(2)

19 20 CFR§656.24(f)

20 CFR§65624(f)

21 20 CFR§656.26

22 U.S. Department of Labor PERM briefing Sessions in Chicago (Jan.11, 2005), in Atlanta (Jan.12, 2005), in Costa Mesa (Jan. 25, 2005) and in Washington D.C.(Feb. 3, 2005)

23 AILA’s Midyear Conference in Los Cabos, Mexico, January 21, 2005.

24 20 CFR§ 656.1717(d)(4)

25 Statements from William Carlson at the AILA Midyear Conference, Los Cabos, Mexico, January 21,

26 The U.S. Department of Labor’s responses to Frequently Asked Questions regarding the PermanentLabor Certification Program dated March 3, 2005, posted on AILA InfoNet at Doc. No. 05030861 (Mar. 3,2005).

27 20 CFR§ 656.17(a); 20 CRF§656.17(g)

28 20 CFR 656.17(d)(ii)

29 20 CFR §656.17(d)(l)(ii)

30 Pub.L. No.106-313,Title 1§106

31 That is, under the O’Net job zones, 20 CFR§656.17(h)(i)

32 20 CFR§656.17(d)(2)

33 20 CFR§656.17(d)(1)(ii)

34 20 CFR§656.17(d)(1)

35 The U.S. Department of Labor’s responses to Frequently Asked Questions regarding the PermanentLabor Certification Program dated March 3, 2005, posted on AILA InfoNet at Doc.No. 05030861 (Mar.3, 2005).

36 20 CFR§656.17(d)(3)

37 20 CFR§656.17(d)(4)

38 Minutes of AILA/DOL-ETA Liaison meeting on March 17, 2005, posted on AILA InfoNet at Doc. No.05040760.

39 88 INA 92,February 9, 1989 (en banc)

40 20 CFR§656.17(i)

41 20 CFR§656.17(i)(1)

42 20 CFR§ 656.17(i)(2)

43 20 CFR§ 656.17(i)(5)(ii)

44 20 CFR§656.17(i)(3)

45 20 CFR§656.17(i)(3)(i)

46 20 CFR§656.17(i)(3)(ii)

47 69 Fed. Reg. 77353 ( Dec. 27, 2004)

48 20 CFR§656.17(i)(5)(i)

49 69 Fed. Reg. 777353 (Dec. 27 2004).

50 20 CFR§656.17(h)(1)

51 20 CFR§656.17(h)

52 69 Fed. Reg. 777351 (Dec. 27 2004)

53 20 CFR §656.17(h)(4)(i)

54 20 CFR 656.17(h)(4)(ii)

55 20 CFR 656.21(g)(9) (Old Regulations)

56 U.S. Department of Labor, General Administration Letter. No. 1-97 (October 1, 1996)

57 20 CFR§656.17(e)

58 20 CFR§656.17(e)(2)

59 20 CFR§656.17(e)(1)(i); 20 CFR§656.17(e)(1)(A)

60 20 CFR§656.10(d)

61 69 Fed. Reg. 777377 (Dec. 27 2004).

62 20 CFR§656.17(e)(1)(i); 20 CFR§656.17(e)(1)(A)

63 20 CFR§656.17(2);20 CFR§656.17(e)(2)(i)

64 20 CFR§656.17(e)(1)(B)(4)

65 20 CFR§656.17(e)(1)(ii)

66 69 Fed. Reg. 777345 (Dec. 27 2004).

67 20 CFR§656.17(e)(1)(ii)(A)-(J)

68 20 CFR§656.17(e)(1)(ii)

69 20 CFR§656.17(e)(1)(i)(A)

70 20 CFR§656.17(e)(1)(i)(A)

71 20 CFR§656.17(f)(1)-(7)

72 U.S. Department of Labor’s response to Frequent Asked Question regarding the Permanent Labor Certification Program dated March 3, 2005, posted on AILA InfoNet at Doc. No.0 05030861 (Mar. 3, 2005).

73 Nor is it clear who must be included in the recruitment report. The FAQ allows the employer to place broadly written ads, but advises that the employer must address all minimally qualified applicants. The FAQ warns that if the employer receives a large volume of applicants to generic ads, all of them must be addressed in the recruitment report, giving the impression that DOL will deem all responses as minimally qualified. While the regulations require that all responses must be accounted for, nothing in the regulations implies a presumption that every person responding is “minimally qualified.”

74 20 CFR§656.17(f)(7)

75 20 CFR§656.17(f)

76 20 CFR§656.17(e)(1)(i)

77 20 CFR§656.17(1)(i)(A)

78 20 CFR§656.17(e)(1)(ii)(A)

79 20 CFR§656.17(e)(1)(ii)(B)

80 20 CFR§656.17(e)(1)(ii)(C)

81 20 CFR§656.17(e)(1)(ii)(D)

82 20 CFR§656.17(e)(1)(ii)(E)

83 20 CFR§656.17(e)(1)(ii)(F)

84 20 CFR§656.17(e)(1)(ii)(G)

85 20 CFR§656.17(e)(1)(ii)(H)

86 20 CFR§656.17(e)(1)(ii)(I)

87 20 CFR§656.17(e)(1)(ii)(J)

88 20 CFR 656.10(d)(1)(i)

89 20 CFR656.10 (d)(1)(ii)

90 Id

91 Id.

92 Id

93 20 CFR 656.10(d)(3)(i)-(iii)

94 20 CFR 656.10(d)(3)(iv)

95 20 CFR 656.10(d)(4); 20 CFR 656.17(f)

96 Id

97 Id

98 20 CFR 656.10(d)(4)

99 20 CFR 656.17(k)

100 Id

101 20 CFR 656.17(k)(2)

102 20 CFR 656.17(l)

103 20 CFR§656.3

104 Id

105 20 CFR 656.17(l)(1)

106 20 CFR 656.17(l)(2)

107 20 CFR 656.17(l)(3)

108 20 CFR 656.17(l)(4)

109 20 CFR 656.17(l)(5)

110 In re Lignomat USA, Ltd, 88 INS 274 (Oct. 24,1989, (enbanc); Ocean Paradise of Hawaii, 89 INS 188(Nov. 21, 1989)

111 20 CFR 656.17(f)

112 20 CFR 656.17(g)

113 Id

114 20 CFR 656.17(g)(1)

115 20 CFR 656.17(g)(2)

116 20 CFR 656.24(b)(2)(i)

117 Impell Corporation, 1988 INA 298(May 31, 1989)(en banc), Adry-Mart, Inc., 1988 INA 243 (Feb.1, 1989)(enbanc)

118 20 CFR 656.24(b)(ii), Ashbook-Simon Hartley v. McLaughlin, 863 F.2d 410 (5th Cir. 1989)

119 20 CFR.17(g)(2)

120 Preamble to the PERM regulations 69 Fed. Reg. 77350 (Dec. 27, 2004)

121 20 CFR 656.21 (e) Recruitment Report states, “The employer must provide to the Certifying Officer asigned detailed written report of the employer’s supervised recruitment…”

122 20 CFR 656.18 (a) (1) requires recruitment documentation of the “competitive recruitment and selection process include a statement “outlining in detail the complete recruitment procedures undertaken;…”

123 20 CFR§656.17(g)(1)

124 20 CFR 656.15(c)

125 20 CFR 656.15(c)(1)

126 20 CFR 656.15(c)(2)

127 20 CFR 656.15(d)(1)

128 20 CFR 656.15(d)(1)

129 20 CFR 656.15(d)(1)(i)-(vii)

130 20 CFR 656.15(d)(2)

131 20 CFR§ 656.15(d)(i)-(vi)

132 20 CFR§ 656.15(d)

133 20 CFR §656.15(g)

134 69 Fed. Reg. 777357 (Dec. 27 2004).

135 20 CRF§656.18

136 20 CFR§ 656.18(b)

137 20 CFR§ 656.18(b)(1)-(5)

138 20 CFR§ 656.18 (c)

139 20 CFR§656.18(c)

140 20 CFR§ 656.17(d)

141 40 U.S.C. 276a et seq, 29 CFR Part 1

142 41 U.S.C. 35, et seq., 29 CFR, Part 4

143 20 CFR 656.40

144 20 CFR 656.40(b)

145 US DOL’s Memorandum responses to Frequently Asked Questions regarding the Permanent Labor Certification Program dated March 3, 2005, posed on AILA InfoNET, Doc. No. 05030861 (Mar. 8, 2005)

146 20 CFR§656.40 (b)(2)

147 40 U.S.C. 276a et seq.,29 CFR part 1

148 41 U.S.C. 351 et seq.

149 20 CFR§656.40(b)(4)

150 20 CFR§656.10(c)(2)

151 Id

152 20 CFR§656.40(g)

153 20 CFR§656.40(g)(2)

154 20 CFR§656.40(g)(3)(i)-(ii)

155 20 CFR§656.4 (a)(2)(i) ( old regulations) See also P117 of the Technical Assistance Guide.

156 20 CFR§656.40(b)(3)

157 20 CFR §656.20 (NPRM)

158 69 Fed. Reg. 777359 (Dec. 27 2004).

159 69 Fed. Reg. 777358-777359 (Dec. 27 2004).

160 69 Fed. Reg. 777359 (Dec. 27 2004).

161 Id.

162 20 CFR§656.20(a)

163 20 CFR§656.2012)

164 20 CFR§656.20(2)

165 20 CFR§656.20(b)

166 Id

167 69 Fed. Reg. 777359 (Dec. 27 2004).


169 20 CFR§656.20(a)(2); 20 CFR§656.20(c)

170 20 CFR§656.17(e)(l)(ii)

171 20 CFR§656.20(3)

172 20 CFR§656.20(c)

173 This is the essence of statements made by Dr. Carlson at the PERM briefing Session in Costa Mesa, California on January 25, 2005.

174 20 CFR§656.20(b)

175 20 CFR§656.20(d)

176 20 CFR§656.26(a)(i)

177 CFR§656.27(c)(1)-(3)

178 20 CFR§656.24(g)

179 20 CFR 21§656.24(g)(3)

180 20 CFR§656.41(e)

181 Id

182 20 CFR§656.32(a)

183 20 CFR§656.30(c)(2)

184 17 Fed.3rd 1509 (D.C. Cir 1994)

185 69 Fed. Reg. 777363 (Dec. 27 2004).

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