Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.
Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries.
PERM job descriptions are more important than ever, as they will dictate who applies for the job during the PERM recruitment process, as well as how the foreign national qualifies for the position, and under which immigration category. I often get asked what should be in a job description for a PERM sponsorship. I’ve seen so many employers and HR managers make mistakes in this area. A PERM job advertisement must go in the newspaper classifieds on two different Sundays, so typical online postings with their long list of duties and company descriptions, would be prohibitively expensive. It is a true art to get the ad just right so that it supports a successful PERM application, doesn’t cost the employer and arm and a leg, and captures the foreign national’s qualifications for the position. There is no substitute for working with seasoned immigration counsel on developing PERM advertising and job descriptions.
We recently presented a webinar on PERM in the COVID-19 era. Susanne C. Heubel, Alejandra Vargas, and I provided employers with a PERM roadmap for our new normal. Through this Duane Morris Institute webinar we provided employers with a few key takeaways for successful PERM applications:
- Understanding the Department of Labor’s mandate to protect American workers during the PERM process will help employers determine when and who to sponsor for PERM applications;
- The Department of Labor will be conducting more PERM audits due to the very tough job market and high unemployment rates;
- Employers will need to be super strategic in drafting PERM job descriptions and advertisements due to the availability of workers in the market in certain job categories;
- Strict compliance with all PERM requirements including the posting notice, prevailing wage and all advertising is imperative for overcoming a DOL audit.
Replays of our webinar are available, so please reach out if you would like a link to the program, or if you have PERM and employment based immigration sponsorship questions.
On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.
Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window. Continue reading TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC
Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees). Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny by the DOL are expected in the short and long term, making it imperative that employers have all of their I’s dotted and T’s crossed when completing the PERM steps.
Nowhere are the details more important than when completing the required PERM “Notice of Filing” step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a “Notice of Filing,” for the employees at the worksite to see for 10 consecutive business days, commonly called a “wall” Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.
During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html
Continue reading Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19
The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.
Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not “normal,” the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.
Recent DOL PERM audits are now requiring that an employer explain why the employer’s job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants. Continue reading PERM Business Necessity – Back with a Splash?