THE PITFALLS OF PERM

BROUGHT TO YOU BY
Robin V. Catmur Director, ISSIS University of Georgia
Connie L. Burk Director, International Affairs University of Tennessee Health Science Center Suzanne B. Seltzer Partner, Klasko, Rulon, Stock & Seltzer

AGENDA
The Academic Context Prevailing Wages Recruitment/Notice of Filing

Special

Handling Standard

Preparing the ETA-9089 Audit Files/Post-Filing Issues

The Academic Context

Stakeholders, Communication, & Obstacles
Stakeholders Hiring Department; Deans Office(s); Faculty; Human Resources; Equal Opportunity Office; Legal Affairs; Employee / Beneficiary Policy Development Who /when we will sponsor, and in which categories? Will we support re-advertising and re-recruiting? Who pays for what part? Level of assistance with I-485s? Buy-in from all departments/offices is *essential* to widely accepted policies

The Academic Context (contd)

File audits and compliance Who has signing authority for DOL purposes? Who maintains the audit file, where is it kept? Procedural Development Intake and notifications Ads and recruiting Getting information needed to assess options and application details

The Academic Context (contd)

Issues of Contention PERM vs. OPR; how to tell someone they are not that good(appeal process?) Trying to explain the PERM process including that, even if approved, it could be many years before the employee actually gets the green card. Job description and duties; can be several versions depending on who provides the information; experiential requirements and what counts Salary ranges and job classifications can be difficult to mesh with DOL requirements

The Academic Context (contd)

Issues of Contention (contd) Advertisement content not always real world Running a print ad? Youre kidding, right? 18 months from selection? By the time they start, half that time has gone by. Re-advertising and re-recruitment (when position is currently filled). Seriously? Conveying the goal of a re-advertising process: not to hire the foreign national but to prove no qualified (or better) U.S. workers.

Prevailing Wages
Where do they get this stuff?
Employer

surveys from OES in May and November (tell your HR offices to respond!) ETA PW Determination Policy Guidance

Prevailing Wage Issues

Fluctuating

processing times Insufficient jobs in ACWIA database no match for academic jobs; combination of occupations? Incorrect levels assigned

Prevailing Wages (continued)

Always do your research first and know what you *should* be receiving back for a wage (appendix C worksheet). To get an ACWIA wage, item D.a.6 should contain: *** This employer is an institution of higher education or a research entity under 20 CFR 656.40(e).***
To use a wage source other than OES: D.a.6. should include a sentence surrounded by asterisks (***..***) requesting the use of a specific source with the name, edition, revision and publication date. DOL recommends sending survey by email to FLC.PWD@dol.gov with reference to PW case number

Prevailing Wages (continued)

Job Zone vs. SVP; defines normal experience Know how / when to appeal; Re-determination vs. BALCA appeal (timing is definitely an issue)
Issues

prior to determinations or to request a duplicate: FLC.PWD@dol.gov

How to note ABD as minimum recent issues Combination of occupations impact on PERM (?) Validity periods continue to shorten as we get close to July 1st

Ad-vantages

Special Handling
DOL Requirements Print

Professional Journal Apprise interested applicants of position Balancing DOL requirements with Institutional Policy Blanket rank ads Including &/or quantifying experience Degree requirements general or not stated Preferences

National

Dis-Ad-vantages

Professional Positions
More

everything

Two

Sunday Ads in Regional Paper Plus 3 other steps (see chart) Job Order State Workforce Agency Notice of Filing Posting
Not

best qualified standard

Content:

all reqmts? Some? What is sufficient? Blanket rank ads Including experience/degree

Options for Professional Recruitment Steps

Notice of Filing (Posting)

Purpose

of Posting Where do you Post In-house media? What needs to be included? How long to Post Counting days after posting Differences with Professional Positions

Preparing ETA-9089

Timing Issues with Special Handling

18-month
What

clock starts with selection

is selection date? How to evidence?

PWD check expiry date! Notice of Filing Posting

Submit

post for 14 days & wait 30 days

Preparing ETA-9089

Timing Issues with Professional PERM

careful expiry date Job Order post for 35 days and wait 30 Notice of Filing - 14 days and wait 30 Recruitment Steps
PWD
One

step can be done within 30 days If first ad placed during PW validity period, expiry date for PW no longer an issue

Preparing ETA-9089

Beware typos:
Esp.

check all dates carefully Triple-check everything Print and read draft Re-print and review post filing

ETA-9089 Pitfalls/Professional

Occupation Title = O*NET title, not your job title

Any suitable combination of education, training, or experience is acceptable

ETA-9089 Pitfalls/Professional

Check answers to J.17-21 carefully inadvertently checking wrong box is easy to do

Either

Preparing ETA-9089 & Audit File

Ad versus ETA-9089 do they have to match exactly?

Establish logical nexus Prof. Position: specify (detailed) requirements

Recruitment Report Special Handling How many applied How many were interviewed Basis for selecting candidates for interview Interview process Determining best candidate

Preparing ETA-9089 & Audit File

Recruitment Report Professional Positions List lawful reasons U.S. workers rejected Provide # of U.S. workers in each rejection category Method of contact for interview/date interviewed/reason why not interviewed

After ETA-9089 submission, check DOL ETA website for update on case, since there is no automatic notification unless case is certified.

The Audit File

Audit File Special Handling
Recruitment

report Original PRINT ad Appointment letter dated w/in 18 months Candidates resumes Applicants qualifications ______________________________ Prevailing Wage Determination Completed Notice of Filing Posting Copy of ETA-9089

The Audit File

Audit File Professional Position
Wage Determination exp. date: file ETA-9089 or begin recruitment w/in validity dates Two original ads (entire newspaper/journal page) Job order 3 additional recruitment methods Completed Notice of Filing Posting Candidates resumes Recruitment report Copy of ETA-9089
Prevailing

What to Expect After Filing

Approval, Audit, Denial, Revocation Audit Process
Respond

in 30 days to letter Risk of supervised recruitment for two years Up to 5 years

Helpful Websites

DOL PERM Info http://www.foreignlaborcert.doleta.gov/perm.cfm PERM regulations: http://tinyurl.com/4nbd6n4 PERM FAQs: http://www.foreignlaborcert.doleta.gov/faqsans wers.cfm

Helpful emails?
Problems/ or issues related to specific PERM applications: PLC.Atlanta@dol.gov
Technical problems or issues related to general system related matters plc.help@dol.gov

Any Questions?

Thank you for Attending

Robin V. Catmur Director, International Student, Scholar, and Immigration Services University of Georgia rcatmur@uga.edu
Connie L. Burk Director, International Affairs University of Tennessee Health Science Center cburk@uthsc.edu Suzanne B. Seltzer Partner, Klasko, Rulon, Stock & Seltzer sseltzer@klaskolaw.com