The new Department of Labor (DOL) PERM regulations place the burden of responsibility for the accuracy of information provided in a Labor Certification application firmly with the employer. The DOL has committed to enhancing the program and eliminating fraud or misuse of the process by imposing strict penalties on employers if violations occur.
Before a Labor Certification may be filed, an employer must register with the PERM online application service. Once accomplished, the employer must attest to the accuracy of the information in the application under penalty of perjury; furnishing false information is a federal offense punishable by a fine or imprisonment up to five years or both under 18 U.S.C §§ 2, 1001. Other penalties apply as well to fraud or misuse of ETA immigration documents and to perjury with respect to such documents under 18 U.S.C. §§ 1546 and 1621. Further, an employer must attest that it did not engage in unlawful discrimination, or reject any US workers in violation of other Federal, State, or local laws.
In addition, the employer must attest to the following regarding the job opportunity:
- The employee will be paid an amount equal to or greater than the prevailing wage;
- The wage is not based on commissions or bonuses unless guaranteed and paid on at least a monthly basis;
- The employer has the funds available to pay the offered wage;
- The employer will be able to place the alien on payroll on or before the proposed start date;
- The job opportunity has been and continues to be open to qualified U.S. workers;
- Any U.S. workers who applied for the position were rejected for lawful job-related reasons;
- The job opportunity is a full-time permanent (not a temporary) position.
Employers must engage in specified recruitment pursuant to the DOL regulations, and must maintain copies of all recruitment and all responses from applicants received in response to the recruitment. The employer is expected to interview any U.S. worker whose education and experience appears to meet the minimum requirements for the position.
Prior to filing a PERM application, the employer is advised to prepare a Recruitment Report signed by the person who conducted the recruitment which includes:
- A description of the recruitment steps undertaken.
- The number of applicants who applied for the position.
- The number of applicants hired as a result of the recruitment.
- The number of U.S. workers rejected or who refused job offers.
- The lawful reasons for rejecting the applicants.
Under PERM, the employer is required to maintain the following records for five (5) years: all recruitment documentation; all resumes or applications received; the signed Recruitment Report; the Prevailing Wage Determination; and proof that the newspaper or journal chosen for the printed ads was the most appropriate for the geographic area and the occupation, etc.
Because the PERM application is submitted on-line, the ETA 9089 form is submitted by itself to the DOL at the time of filing. However, the DOL may request a post-filing audit for any reason or at random. If an audit is conducted, the employer is given thirty (30) days to respond to a request for additional documentation. The employer may be asked to justify the requirements for the position, to document the employer's business, to provide evidence of ads, a summary of recruitment results, and/or copies of resumes etc. Should the employer fail to submit the required documentation within thirty (30) days, or should the documentation be inadequate, or should any material misrepresentation be made, or if any other reason exists to challenge the employer's information, the Certifying Officer may deny the application. In addition, the DOL may sanction the employer by ordering supervised recruitment for any future filings for up to two (2) years.
Once an application has been designated for an audit, it cannot be withdrawn. In order to avoid sanctions, the employer must comply with the terms of the audit even if it no longer wishes to employ the foreign national.
Reconsideration And Appeal; Revocation And Invalidation
The DOL has instituted systems for reconsideration or appeal of a prevailing wage determination or of a denial of a PERM application. Approved Labor Certifications can be revoked (with no time limit) by the DOL Certifying Officer if s/he finds the certification was not justified. The Department of Homeland Security (DHS) or Department of State (DOS) may invalidate an approved Labor Certification for fraud or willful misrepresentation of a material fact.
Should You File Under PERM?
Although the requirements outlined above are stringent, employers who cannot fill positions with U.S. workers should not be deterred from filing bona fide Labor Certification applications under PERM. Should you choose to engage our firm, Van Der Hout, Brigagliano & Nightingale, LLP will advise and assist employers and their employees with each step of the process in an attempt to maximize the likelihood of approval. Should an audit be conducted, it is our practice to work closely with the employer to ensure that documentation provided to the DOL is thorough and complete.