PERM labor certification – Immigration solutions
Question: I have several issues and questions regarding the PERM. How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically or the application was originally filed by mail?
Answer: In the event an employer is unable to withdraw electronically, the employer should send a withdrawal request by e-mail to the appropriate National Processing Center at: PLC.Chicago@dol.gov (for Chicago) or PLC.Atlanta@dol.gov (for Atlanta). If the application was filed by mail or if the employer does not have access to e-mail, a letter must be mailed to the National Processing Center to which the application was originally submitted using the format as outlined above.
Question: How can an employer withdraw a PERM application if it has already been certified?
Answer: An employer may withdraw a certified PERM application at any time. A certified PERM application may not be withdrawn electronically; therefore, the employer should send a withdrawal request by U.S. Mail to the appropriate National Processing Center where the original certification was granted.
Question: Once an employer requests its application be withdrawn, how soon can the employer file a new application for the same alien beneficiary?
Answer: After requesting a withdrawal, an employer may not file a new ETA Form 9089 for the same alien beneficiary until one of the following occurs: (A) Employer sees, using the online PERM system, that the status of the original case changes from “In Process” to “Withdrawn,” or (B) Employer receives confirmation (via standard U.S. Mail or e-mail) from the NPC that the ETA Form 9089 currently in process has been withdrawn.
The employer is reminded that an employer may not file a new application merely because the online status changed to “Denied.” The employer must wait until it receives the Final Determination Form from the National Processing Center stating the reasons for the denial. This ensures the employer is apprised of all the application’s deficiencies.
Question: If the employer’s minimum requirements include some period of training, must the alien beneficiary’s training be listed on the Application for Permanent Employment Certification, ETA Form 9089, Section K, as well as attested to in Section J?
Answer: An employer must list the actual minimum requirements for the job opportunity sought to be filled through the filing of the labor certification application. If training is required, the employer must list the training required for the position in Section H.5, noting the number of months of training required in H.5.A, and the field of training in H.5.B. The employer and alien beneficiary must also attest that the alien beneficiary meets the training requirement in section J.17.
The employer is also required to list in Section K, as noted on the Form ETA 9089, “any other experience that qualifies the alien for the job opportunity for which the employer is seeking certification.” Accordingly, an employer seeking certification should list in Section K any training experience possessed by the alien that qualifies the alien for the job opportunity, regardless of how the training was secured. The source of the training should also be identified. For example, an application for the job opportunity of physician filed on behalf of an alien that requires 36 months of medical residency training in H.5 should not only mark section J.17 as “yes” but also list in Section K all training experience by which the alien meets that training requirement, as well as any other experience requirement. An employer filing an application for a job opportunity that requires 12 months of training in section H.5 should also list the training received by the alien in section K, regardless of whether it was a paid training opportunity, and also list the source of the training.
When completing section K, enter the training provider in the employer information section, to include the address. For the type of business, enter ‘training provider’ unless the training is of a work study type such as an apprenticeship or medical residency. The job title should be ‘Training’ unless there is an actual job title, in which case it should begin with ‘Training –‘ followed by the title, such as ‘Training – Apprentice Carpenter’. The employer should enter the beginning and end dates of the training. When there is an actual number of hours of training, the employer should enter those actual hours, otherwise the employer should enter the average number of hours per week spent in training. In the “Job Details” the employer should list the topics covered by the training, any certification of completion issued and, when applicable, the organization issuing the certificate, if different from the training provider, and the final test completion or certification date.
Question: How do I count days to establish recruitment timelines and time periods as outlined by the regulation?
Answer: Timelines are the number of days prior to or after a required event. When counting a timeline, the day of the event is not counted, the next day is counted as one, and the last day is included in the count. Thus, when determining the required 30 day timeline prior to filing an application for a newspaper advertisement placed on Thursday, February 1, 2007, the Thursday is not counted because it is the day of the event. Friday, February 2nd, is counted as day 1 of the timeline; Saturday, February 3rd, day 2; etc., up until Saturday, March 3rd, which is day number 30. The application can be filed on the 30th day after the event, Saturday, March 3rd, but not before.