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Joel Stewart on PERM Labor Certification

PERM Process: Copies of Ads are OK!

Rating: 4 votes, 5.00 average.

In the pre-PERM law (until March 28, 2005), the Department of Labor's regulations were very specific about photocopies of ads. No photocopies were accepted. Only originals tear sheets!

Employers used to scramble around to find original ads to provide to DOL. Often they could not obtain them in time to respond to the 45-day letters requesting recruitment documentation. (In those days, the DOL would issue recruitment instructions, and employers had to see that copies of ads and the results of recruitment were provided to the local SWA in 45 days.) They actually had to arrive at the SWA within 45 days. Although some SWAs and ETA regions adopted policies permitting extra time for submission, in most instances the time limit was strictly enforced.

Issues arose over the availability of tear sheets. For example, sometimes they were not available or could not be obtained, i.e., actual, physical copies of the newspaper or journal were not at hand. In these cases, some publishers provided an affidavit stating that the ad had been placed and a copy of the ad. These affidavits were usually accepted by DOL, although not within a literal meaning of the regulations.

The scope of federal laws regarding the acceptances of copies or facsimiles has now grown considerably, and insistence of "original" tear sheets is no longer legally required in most instances. Probably for this and other reasons, the DOL adopted a policy with the introduction of the PERM Rule to accept copies of original advertisements.

Nevertheless, original tear sheets may still be required under the old rule which is still in existence. This is true because the PERM Rule only applies to cases filed on or after March 28, 2005. Many labor certification cases are still winding their way through the system. If they reach BALCA and are remanded, the cases will go through the recruitment process under the old rule (original tearsheets only) and not under the new rule (copies Ok!).

In any event, copies should always adhere to certain principals. The page showing the place and date of publication should be included. Efforts to cut out ads in their original shape and form, leaving the rest of the page behind, are not recommended!

By the way, if you file PERM cases, and you don't use an ad placement service, you are missing a great assistance to the already-complicated regulatory process. The ad placement services (such as Adnet in New York City, the original ad-placer, and other services which have now been established around the country) place ads for employers.

The service include recommending the newspaper (unofficially, of course), simply because they place large number of ads. When a job needs to be advertised in Oshkosh, and the employer does not know which newspaper is appropriate, an Ad Placement Service can tell the Employer which newspapers have been accepted by the Certifying Officer.

If an attorney or agent is placing the ad, the Service collects the money from the employer and pays it directly to the newspaper. Finally, the Service collects the ads themsevles (originals if pre-PERM and copies if PERM!) and sends them to the Employer. Of course the Employer has to pay the bill to get the ads.

And don't forget that under PERM, the copies are placed in the Record File, awaiting an audit or other occasion for review by DOL, to be held for five years from the date the Form 9089 is filed with DOL. Under pre-PERM cases, the original tear sheets are sent to the SWA, and the Employer, although not required by law, may keep copies for its own records.

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