PERM Conversion and Recruitment Campaign
For Indians, Chinese, and Philippines nationals, whose labor certification applications have been and will be pending on or before March 26, 2005, it is extremely important that they seek conversion without losing priority date because of the retrogression of the EB-3 visa numbers from January 1, 2005. It is very important that they understand the rule of conversion and the recruitment requirement so that they can initiate recruitment campaign as soon as possible and refile his/her case after March 27, 2005 under the PERM program. Accordingly, we will discuss here two subjects which are in a way time sensitive for the purpose of initiating the PERM recruitment process.
Conversion Rules: The PERM regulation allows the employers to withdraw the pending labor certification applications and refile a new application under the PERM system. Here the employers should keep in mind three points:
Once the pending application is withdrawn, the new labor certification must be filed within 210 days.
The new application must satisfy at least two conditions. One is that the new application should satisfy all the eligibility requirement for certification under the PERM regulation. Secondly, the new application should maintain "identical" job which was provided in the pending application. Here "identical" job means, the new labor certification should be the same for the following items:
Employer
Alien
Job Title
Job Location
Job Requirements
Job Description
However, the PERM regulation considers any accepted/approved amendments to the pending labor certification application up to the time of withdrawal to be "initial" application. Accordingly, should the employer need amendments to the pending applications for the purpose of a successful filing of the new application under the PERM regulation, the employer should seek promptly such amendment before the employer launches the recruitment campaign for filing of a PERM regulation. For instance, should the employer find some job requirements which may be considered unduly restrictive requirement, they should amend it before too late. The current labor certification regulation permits other amendments without losing priority date and without affecting the ongoing labor certification process. All the necessary amendments must be taken care of very quickly.
Recruitment Requirements: The PERM regulation preamble states that the effective date of the PERM regulation is set at 90 days rather than 60 days or any shorter period of time is to allow the employers time to engage in the PERM recruitment process before the regulation takes effect, March 27, 2005. Since the recruitment campaign should be performed during six months prior to filing of a PERM regulation, the employers have sufficient time to initiate the campaign now. The PERM regulation requires different level of recruitment depending on the level of occupations. The employers should strictly adhere to these requirements.
Nonprofessional Occupations: Nonprofessional occupation means the occupations that do not normally require a bachelor's degree. For these occupations, the PERM regulation requires only "mandatory" steps, which include:
Job Order with the state workforce agencies in the area of intended employment. The national bank search job order must remain at least for 30 days. The employer should collect the document showing starting date and ending date of the job order from the state agency.
Two Sunday Daily Newspaper Ads: The ads can be ordered consecutively immediately after the first ad. The PERM regulation removed the current practice of requiring 28-day interval between the two ads. Accordingly, the employer can place one ad next Sunday, for instance, and the second ad, the following Sunday. The second ad must be published at least 30 days prior to filing of the PERM application.
Professional Occupations: Unlike the nonprofessional occupations, the professional occupations requires "Additional Recruitment Steps" on top of the foregoing "mandatory steps." Professional occupations mean the occupations that require minimum of a bachelor or higher degree. These steps are as follows:
Mandatory Steps:
Job Order
Two (2) Sunday edition local newspaper ads. For the jobs that require a bachelor's degree without experience requirement, two newspaper ads are absolute requirements. However, those jobs that require either experience on top of a bachelor's degree or an advanced degree, the employer can combine one newspaper ad and one professional journal ad. For instance, in computer jobs, employer can place one ad in the local Sunday paper and one ad in the Computerworld.
Additional Recruitement Steps: On top of the mandatory recruitment campaign, the employers are also required to engage in at least three (3) additional campaigns out of the following 10 options. One of the three steps can be completed even less than 30 days prior to filing of the PERM application.
Job Fair: Ad or program should name the employer name.
Employer website: Dated copies of the ad page.
Job Search Websites: Dated copies of the ad page. The PERM accepts electronic version of advertisement by the newspapers that run the print ads under the foregoing mandatory step as a proper campaign to meet this additional recruitment step option. Accordingly, if the employer orders newspaper ad and the paper automatically carries the ad on the newspaper website because of the newspaper's company policy, one print ad will satisfy one additional recruitment requirement without paying any extra cost for electronic ad of the newspaper! Employer should print out such dated electronic ads.
On-Campus Placement Office: Collect a statement from the college and university placement office that it was posted with the name of the employer and date of interviews conducted.
Trade or Professional Organizations: Copies of pages of newsletters or trade journals of these organization carrying the employer ad.
Recruiters or Employment Agencies: Copy of contract with such firms and copy of the ad by such firms.
Employee Referral Program with Incentives: This was a very popular recruitment source when the economy was good. Some companies offered a car or expensive computer. Employer should keep dated copies of the employer notices or memos advertising such program to the employees with specifying incentives offered.
Campus Placement Offices: Copy of notice of job opportunity provided to the campus placement office.
Local and ethnic newspapers: Copy of the ad page.
Radio or TV Ads: Copy of the text of the ad along with a written confirmation by the radio or TV that it was aired.
Required Text of the Ads: The foregoing recruitment campaign must be conducted with a proper text. The PERM regulation requires the following in the ads:
Name of the employer
Statement directing applicatns to report or send resumes to the employer
Job description sufficiently specific to understand the job
Geographic location of the job
Wage does not have to be printed, but once the employer opts to advertise the wage, it must not be less than prevailing wage
Requirement or duties should match with the labor certification application to be filed.
Specific terms and conditions of employment does not have to be printed, but once the employer opts to advertise such information, it must not be less favorable than those offered to the alien.
PERM labor certification application does not require proof of the foregoing documentation at the time of filing. However, the Certifying Officer can ask such documentation or in the situation of the audit, the employer must make these documents available. Additionally, the employers are required to keep these evidence for five (5) years from the date of filing of the PERM application. It is thus critically important that the employers develop a good record keeping and management system inhouse.
Employment Visa Numbers Retrogress!