Joel Stewart on PERM Labor Certification
, 12-12-2016 at 03:58 PM (2587 Views)
A meeting with the Department of Labor was held on December 6, 2016. The meeting provided an opportunity for stakeholders to pose questions regarding the PERM process. A wide range of topics was discussed.
1. Processing times. In 2016, there was a significant slow-down in prevailing wage determinations. While requests used to take one month, a backlog of almost six months developed in the second half of the year. DOL explained that because they have limited resources, they had to transfer examiners from the permanent program (PERM) to adjudicate temporary labor certification requests for agricultural workers. The need for agricultural workers is seasonal, so backlogs vary at different times of the year.
2. Tools for Prevailing Wage Requests. The Prevailing Wage Center uses the same tools as stakeholders, such as the O*Net database of occupations, information about commuting found in the Metropolitan Statistical Areas, and wage surveys. DOL advised that attachments with documentation should not be uploaded, because examiners do not have time to review the material. Instead, documentation should be summarized somewhere on the prevailing wage form 9141. Attachments would only be used if the employer asks DOL for redetermination or reconsideration.
3. Combinations of Job Duties. DOL recognizes that many occupations share similar job duties. When this occurs, the prevailing wage should be increased to a higher level (there are four levels in all). Where an occupation has shared duties, OFLC will assign the higher of the two wages.
4. Two Or More PERM Filings for the Same Job. OFLC can detect multiple filings by searching for the name of the employer and comparing the SOC codes in their applications. Stakeholders report that if two applications are filed for the same job, employers may expect a denial instead of an opportunity to withdraw. This is a change in policy, because in the past employers normally received an opportunity to withdraw one of the duplicate applications.
5. ACWIA. The American Competitive and Workforce Improvement Act applies to prevailing wage determinations for institutions of higher education, related or affiliated nonprofit entities, nonprofit research organizations, or governmental research agencies. Requests for prevailing wage subject to ACWIA take into consideration the type and size of employer and not just the type of job. Because DOL may not always recognize that a prevailing wage request is one which should be determined under ACWIA, employers may place an asterisk in the title field to correspond with a written explanation regarding ACWIA in another box.
6. Prioritizing Adjudications. The Atlanta Processing Center does not adjudicate applications for PERM based on first in, first out. Difficult cases take more time than others.
7. Unquantified Special Requirements and Skills. Specials skills are usually placed on the PERM Form 9089 in Box H-14. Terminology used in H-14 often includes words and phrases like “knowledge of,” “proficiency in,” or similar terminology. These special requirements should be quantified, but there is no DOL guidance on this subject. DOL has been denying applications that do not include quantification, but a recent decision from the Board of Alien Labor Certification (Smartzip Analytics, 2016-PER-695, November 9, 2016) has held that DOL should explain to employers how they may meet the requirement to quantify rather than deny applications for lack of guidance. In view of this important BALCA decision, OFLC has agreed to stop issuing denials and to provide guidance in the form of an FAQ.
8. Salary Range. OFLC has often denied PERM applications where employers listed salaries with phrases like “competitive salary,” “DOE [Depends on experience],” or “negotiable.” Many State Workforce Agencies have job order templates that do not permit employers to state wage ranges in a manner consistent with the PERM Rules. In Matter of Tek Services, LLC (2016-PER-207, (November 16, 2016), the Board reversed a denial where the employer advertised “competitive salary” instead of the one in the Prevailing Wage Determination. Based on this decision, DOL stated that it would approve cases that utilize salary ranges for job bank orders.
9. Harmless Error. Although harmless error does not exist in the PERM Rule, the Board has carved out exceptions which in some cases may include corrections for simple, typographical errors like the one where an employer typed the wrong date for the second Sunday ad. Both Sunday ads were properly placed on Sunday, but one of the dates reported by the employer on the PERM form was in error. DOL does not agree that changes on the form may be made to correct harmless errors. Instead, corrections may be made only after denial and appeal to BALCA.
10. Digitalized Signatures. DOL requires original signatures and does not accept electronic or digitalized versions of signatures.
11. Electronic Notification of PERM Letters. On December 1, 2016, the Board began to utilize electronic notification for audits, denials, requests for information, confirmation of withdrawals, and decisions from appeals, instead of hard copy notifications.