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Joel Stewart on PERM Labor Certification

PERM Notice Must Be Posted at Workplace

Rating: 4 votes, 5.00 average.

The PERM "Notice of Filing" is a posting of the job opportunity, usually on the wall where it is highly visible, for 10 business days. The "Notice" is not intended to be a form of recruitment, but a statement to the other workers that the Employer has a job opportunity available and that a foreign worker may be placed in the position. Interested parties may read the notice and provide comments to the Certifying Officer.


The Notice of Filing has been the source of many denials for employers.


First, the address of the Certifying Officer must be placed on the Notice, but sometimes the wrong DOL address has been used. This occurred commonly when PERM first began in 2005, because under the old system the Employers posted similar notices with the address of the State Workforce Agency. While most SWA's maintained constant addresses, if the SWA moved, the old and new addresses often remained available on outdated literature and internet sites. This added to the problem, since the Employer may have made the additional error of putting an outdated SWA address in the PERM notice.


This week a case was brought to my attention regarding the issue of the Employer's address. In the Notice of Posting, the address where the work will be performed is the address where the posting should be placed for 10 working days. The Employer erred, however, and put the main, corporate address, not the address of the workplace.


The problem is also likely to occur if there is more than workplace proposed. This requires posting at various, possible workplaces, not just at one.


The Employer may indicate two of its own addresses on the 9089, one being the Employer's main, corporate or business address, and the other being the address where the work will be performed. The latter is the one that needs to be on the posting.


Actually, there is a third possible address. The Employer may indicate the name and address of its corporate official who will be responsible for the PERM process, and this official address may be different than the other addresses.


Again, it is the address or addresses where the work will be performed that must be posted.


The address of an attorney or agent should not be used. The only purpose for giving the address of an attorney or agent should be for the DOL to communicate with the Employer.


The use of an attorney's address is especially frowned on, since it may have a chilling effect on the application. The only exception is if the attorney is in-house and normally does the recruitment for the company.


Another common error is the name of the employer. The Notice should have the name of the corporation or business, not the personal name of a manager or supervisor.The Employer should be careful to provide its full business name in the Notice of Posting.


An exception may exist and the Employer's personal name may be permitted in a very small workplace like "Joe's Diner." In this situation, suppose the name of the business is "Joe's Diner, Inc.,"  the posting may inform that interested persons may contact "Joe," and not "Joe's Diner, Inc." BALCA has approved this, but the Certifying Officer undoubtedly will disapprove of this, and an audit or denial is likely to ensue, if the full corporate or business name is not used.


The wage offered must also be uniform throughout the PERM process.


All the information on the posting must be the same as the information on the PERM Form 9089. This would include the name of the employer, address where the work is to be performed, wage offer, job title, job description and job requirements. Of course, information placed into ads and other recruitment efforts must also be the same.


 

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