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Joel Stewart on PERM Labor Certification

PERM: NOF May Not Be Taken Lightly!

Rating: 5 votes, 5.00 average.

The "NOF" is the Notice of Filing. Years ago we called it the "Notice of Posting".  Under PERM, the NOF must have all the information contained in the PERM Form 9089 regarding the job offer and it must be posted for 10 business days. (See our recent Blog describing "business days" as opposed to non-business days). 


It is a matter of black letter law that the PERM application and the NOF must contain the correct wages, including a wage range that is at least as much as the prevailing wage, or the actual wage paid to the alien.


However, the PERM Form 9089 has many inconsistencies (shall we say, "glitches") which are still being worked out, almost six years after implementation of the PERM Rule. One of them involves confusion about the meaning of the term "wages," as there are different definitions, including prevailing wage, minimum wage, actual wage, wage range, offered wage.


In a recent BALCA decision, O'Brien & Van Stiphout, LLC, formerly known as Krupin O*Brien, LLC," 2010-PER-35, the Board has now clarified the meaning of the phrase "offered wage," which appears on Form 9089.


It means the wage offered to the alien at the time (on the day) the PERM Form 9089 is actually filed with DOL, and this definition is taken directly from the Final Rule (Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77338 (Dec. 27, 2004).


Given that PERM applications undergo a recruitment period which must be completed in 180 days or less, and which theoretically may be completed in as little as 61 days, the information in the recruitment and notices (advertisements, Notice of Filing and/or In-House Notice, 30 day job orders, wage information, and employer and alien data) may change during this period.


In this case, the wages did change.


The wage range listed on the Notice of Filing was $50,000-$65,000. At the time of posting the NOF, the alien was earning $65,000.00. However, by the time the PERM Form was actually filed with DOL, the wages paid to the alien had increased to $70,000.00.  


The Employer maintained that wage was correct at the time it was posted, and that this was enough to satisfy the regulation. However, the Board noted that the regulation requires the offered wage to be the one paid to the alien at the time the application is filed, not at the time the Notice of Filing is posted. 


Although not clear in the Board's reasoning, the correct wage range information on the NOF and the Perm Form must have been changed to $50,000-70,000. For some reason, this does does not appear in the published decision.


The Board stated that the NOF is very important to the PERM program, and that, "It is not a regulation to be lightly dismissed under a harmless error finding." In other words, an error on the NOF would be more serious than an error on the Form 9089. 


The reason for this distinction is that the NOF is an opportunity for the Employer to notify the employees and other interested parties that it is filing an application for alien labor certification. It is not really intended to be an advertisement, but a notice to the public, in case anyone wants to complain to the DOL.


Curiously, the application was for a para-legal. The Board has traditionally held a firm line against errors (harmless or otherwise) caused by attorneys, as opposed to errors caused by pro-se applicants. The latter may sometimes be excused for their mistakes under the doctrine of "Manifest Injustice."


The Board's decision also suggests that a typographical error on the PERM Form 9089 might be considered harmless error, especially if the error were made by an employer, and not by its attorney!

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