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Joel Stewart on PERM Labor Certification

PERM: The Ghosts of Christmas Past!

Rating: 5 votes, 4.20 average.

I call your attention to a Memorandum entitled "Directive: General Administrative Letter No. 1-97," dated October 1, 1996. The Memo was written by Barbara Ann Farmer, then-Administrator for Regional Management of the US DOL, and the subject was "Measures for Increasing Efficiency in the Permanent Labor Certification Process."


The purpose of the Memo was to provide procedural guidance to State Employment Security Agencies (SESA's), now called State Workforce Agencies (SWA's), and federal Regional Offices for increasing efficiency in the permanent labor certification process under current regulations in order to handle increasing workload with declining staff resources.


At the time, prior to PERM which was introduced on March 28, 2005, the DOL relied on the Technical Assistance Guide (TAG) No. 656 Labor Certifications and other diverse memoranda. Specifically cited as authority by Ms. Farmer are the regulations 20 CFR Part 656, the TAG, and GAL No. 15-95.


In a paragraph entitled "Background," Ms. Farmer stated, "Over the past 18 months, the Employment and Training Administration (ETA) has been considering proposals for re-engineering the permanent labor certification process in order to increase efficiency in processing, reduce costs, increase protections for U.S. workers, and provide better customer service. To fully achieve all of these re-engineering objectives, legislative and/or regulatory changes to the current labor certification process are required.  The prospect for legislative changes is speculative, at best, and the modification of the regulations could take many months to effectuate."


Remembering that in 1996, recruitment for labor certification was normally conducted under the direction of the State Workforce Agency (formerly SESA), the Memo instructed both Federal and State officers (DOL ETA and the State Workforce Agencies) to implement special efficiency measures:



  • SWA officers to review applications, and if restrictive requirements exist, recruitment should not be implemented until the Certifying Officer reviews the Employer's documentation of business necessity.

  • Reduction in Recruitment (RIR) to be encouraged for occupations for which there is little or no availability, have no restrictive requirements, meet prevailing wage, and for which the employer can show adequate recruitment through sources normal to the occupation and industry within the previous 6 months. Such applications to be given expedited processing by the State Workforce Agencies and the Certifying Officer.

  • Rebuttal evidence of RFE's (called "Notice of Findings")  to only be granted one extension beyond the initial 35-day response time.

  • Harmless Error to be encouraged if the labor market was sufficiently tested and the employment of the alien the prevailing wage was properly calculated.

  • In addition to RIR, a middle-of-the-road review of applications called "Limited Review Processing" was initiated. These applications did not qualify for RIR (pre-recruitment) but also had no processing problems, special requirements, unusual job duties, applicant availability or prevailing wage issues. To my knowledge Limited Review Processing was never implemented in the US.

  • An interesting facet of the memo was called "Resume Screening." Frowned on by BALCA decisions which often require further investigation of applicant qualificastions, resume screening eliminates unqualified workers if their resumes do not show they are "fully qualified."  Under the Memo, State Workforce Agencies were empowered to screen the resumes and discarded them.

  • Standardized Recruitment was a euphimism for reduced recruitment. The DOL embraced the idea that if additional recruitment were required by the CO it should be minimized to include only one Sunday ad along (instead of three ads on any day which was the requirement prior to PERM)with a 10 day recruitment order in the State Job Bank (as opposed to the 30 days normally required).

  • Advertisements which were subject to State Workforce review and editing were no longer to be checked for accuracy when submitted under RIR and Limited Review Processing guidelines.

  • Applicant Questionnaires.  This refers to the SWA practice of sending follow-up questionnaires to US job applicants in which they were "encouraged" to file complaints about the job offer, recruitment or employer's conduct during the recruitment process.


The Memo includes an extensive list of "Operating Procedures" and instructions for RIR (similar to current PERM requirements), Limited Review Processing, 21 Do's and Don'ts, an Addendum which depicts an ideal RIR recruitment report, a Summary of advertising and recruitment recommendations including names of specific newspapers, internet sites, internet requirements, and participation in job fairs,


Although the Memo was written 15 years ago, its recital of perennial issues and chronic problems in labor certification processing still haunts us under the PERM Rule, as the DOL has now undertaken a growing number of cases for supervised recruitment, audits for large numbers of applications, and detailed case review which has raised issues of Due Process in a system which does not allow for rebuttal, and has slowed down the early promises of PERM for quick electronic processing.


For more information, consult the GAl 1-97itself: http://wdr.doleta.gov/directives/corr_doc.cfm?DOCN=763 .


 

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