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OFLC Frequently Asked Questions

Permanent Immigration

Perm
EFFECTIVE DATE
1. What is the effective date of the new Labor Certification for the Permanent Employment of Aliens in the United States, or PERM, regulation?
2. As of March 28, 2005, will all previously filed labor certification applications be converted and/or processed under PERM?
3. Are any PERM regulation provisions applicable to applications filed under the regulation in effect prior to March 28, 2005?

Standards/ Major differences
1. What standards will be used in making labor certification determinations under the new, streamlined system?
2. What provisions have changed in the new system?

Filing
How to File
1. How can an employer file an Application for Permanent Employment Certification, ETA Form 9089?
2. How does the employer file an application electronically?
3. Is it possible to complete only portions of an application, save it, and retrieve it at a later date without having to submit it?
4. Where does an employer file an application by mail and how can people contact the National Processing Centers to ask questions about an application?
5. What is the process by which an employer registers and files an application on line?
6. Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?
7. How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?
8. If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?
9. Will the National Processing Centers issue confirmations of receipt for mail-in applications?
10. Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?
11. Where can I email my questions?
12. Under PERM, is it permissible for an employer to have more than one labor certification application actively in process for the same alien for the same job opportunity at any given time? What should an employer do if it has already filed multiple applications for the same alien for the same job opportunity?
13. In view of the past practice of allowing the filing of multiple applications by the same employer for the same alien if the job opening was different, why, under PERM, is the employer precluded from having more than one application for the same alien actively in process at any given time?
14. For electronically filed applications, please provide a listing, and explanation, of the status indicators that appear on the website.

What to File/Documentation
1. What forms or documents must the employer include in an application?
2. How long must supporting documents be retained?
3. When must applications be signed?

Filing Timeframes
1. When is PERM effective and must the employer wait until the effective date to begin recruitment?

Registration
1. Can an attorney, agent or law firm register to use the Permanent On-line System?

Refiling
1. Can the employer refile a labor certification application filed under the previous permanent labor certification regulations under the new streamlined system and retain the filing date of the original application?
2. Will the job opportunity on the original and refiled application not be considered identical if, for instance, the prevailing wage has changed?
3. Should an employer withdraw an earlier application and refile under PERM?
4. How must the employer save and/or store the documentation necessary to support a labor certification application?
5. In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?
6. Is it possible to refile an application under the PERM optional special recruiting provision for college and university teachers if eighteen months or more have passed since the selection of the alien was made pursuant to a competitive recruitment and selection process?

Attestation
1. What is meant by the "employer's being able to place the alien on the payroll" under § 656.10(c)(4)? How does it differ from having funds available to pay the alien's wage or salary in § 656.10(c)(3)?
2. What role does an attorney or agent play?

Withdrawal
1. How can a pending application filed under PERM be withdrawn?
2. Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?
3. How can an employer withdraw a PERM application if the employer has difficulty withdrawing electronically or the application was originally filed by mail?
4. How can an employer withdraw a PERM application if it has already been certified?
5. Once an employer requests its application be withdrawn, how soon can the employer file a new application for the same alien beneficiary?

Notice of Filing
1. Can notices of filing for college and university teachers recruited under the competitive recruitment and selection process be posted after the selection process has been completed?
2. Must the ten consecutive business days posting of the notice of filing timeframe end at least 30 days prior to filing?
3. What address must the employer provide on the posted notice of filing?
4. For how long must the employer publish a notice of filing in the employer's in-house media?
5. Could the publishing of the notice of filing in the employer's in-house media be counted as one of the additional steps required in the recruitment for professional occupations provision?
6. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?
7. May I post a Notice of Filing for a permanent labor certification indefinitely?
8. I have multiple positions available for the same occupation and job classifications and at the same rate of pay. May I post a Notice of Filing for the same occupation and job classifications with a single posting?
9. Where must I post a Notice of Filing for a permanent labor certification for roving employees?
10. Does the language on the electronic in-house media Notice of Filing need to be exactly the same as the language on the physical in-house Notice of Filing?

Professional/Non professional
1. How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?
2. When advertising for a professional occupation, must the required steps, i.e., the job order, the two print advertisements, and the three additional recruitment steps be different?
3. Will placing an advertisement on America's Job Bank (AJB) satisfy the "web site other than the employer's" additional step requirement for professional occupations?
4. Is it permissible to use forms of media other than the alternative steps listed in the professional occupations recruitment provision, i.e., is it permissible to count advertisements on movie theater screens, on screens in airports, on sides of buses, billboards, etc., as additional steps?

Acceptable Publications
1. What is considered an acceptable newspaper and/or acceptable journal and is there a published list?
2. Is the employer permitted to use an electronic national professional or trade journal?

Time Frames
1. When must the advertisements in the newspaper or professional journals be placed?
2. Must all recruitment take place at least 30 days, but no more than 180 days prior to filing?
3. What are the sequencing or timeframe requirements for the various additional recruitment steps?
4. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?
5. How do I count days to establish recruitment timelines and time periods as outlined by the regulation?

Advertisement Content
1. What level of detail regarding the job offer must be included in the advertisement?
2. If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?
3. Does the job location address need to be included in the advertisement?
4. Does the employer's address need to be included in the advertisement?
5. Does the offered wage need to be included in the advertisements?
6. Why must the advertisement medium be different in order for advertisements to be counted as additional steps? For instance why is it not permissible to count advertisements on two separate web sites as two steps or to place a third advertisement in the same newspaper of general circulation rather than using a local or ethnic publication and have it count as an additional step?
7. Does the advertisement have to contain the so-called "Kellogg" language where the application requires it to be used on the application?
8. Can jobs requiring experience be advertised through an on-campus placement office?
9. Is the employer required to include the statement, "any suitable combination of experience of education, training, or experience is acceptable" on the application when the employer requires experience in an alternate occupation and not in the job offered?
10. After completing our recruitment, but before filing the ETA Form 9089, our company's name was changed after it was wholly acquired by another company. Does the company name used in the advertisements used for recruitment have to match the company name used on the ETA Form 9089?

Multiple Positions
1. Can one advertisement be used for multiple positions?
2. Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: "5 Attorneys," "Attorneys" or "Attorneys, multiple openings"?

Job Order
1. Must the employer place a job order with the State Workforce Agency (SWA) or will a job order placed on America's Job Bank (AJB) be sufficient?
2. Must the required 30 day job order timeframe end at least 30 days prior to filing?
3. Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?
4. Must the employer contact all individuals identified as a "match" by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?

Prevailing Wage
1. Where and when does the employer obtain prevailing wage information?
2. What is meant by "expiration date" in question 8 of Section F, Prevailing Wage Information, on the Application for Permanent Employment Certification, ETA Form 9089?
3. Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?
4. Must the employer request a prevailing wage from a State Workforce Agency (SWA) if a Collective Bargaining Agreement exists or the employer is choosing to use a Davis-Bacon Act or McNamara-O'Hara Service Contract Act wage?
5. If the employer’s job opportunity is for an occupation which is subject to a wage determination under the Davis-Bacon Act (DBA) or the McNamara-O’Hara Service Contract Act (SCA), must the employer use the DBA or SCA?
6. Must the employer obtain a prevailing wage determination before the employer begins recruitment?
7. Why did the prevailing wage two tier skill level structure change to four levels?
8. When does the four wage level provision go into effect?
9. Is the employer permitted to use a valid prevailing wage determination issued prior to March 8, 2005?
10. Is it permissible to use the same prevailing wage determination for more than one application?
11. Does a prevailing wage determination expire?
12. When is it permissible to use the median in lieu of the arithmetic mean to establish the prevailing wage?
13. When is the employer permitted to provide an alternate wage source?
14. What are the criteria for an acceptable employer-provided survey?
15. What options are available to an employer who disagrees with the State Workforce Agency (SWA) prevailing wage determination?
16. What additional documentation may the employer provide to the Certifying Officer when requesting a review of the prevailing wage?
17. Is the employer permitted to use a wage range as opposed to a single wage rate in advertisements for the job offer?
18. What is meant by "domestic worker applicants" in the provision on actual minimum requirements?
19. What is meant by "contract employee" under the employer's actual minimum requirements provision?
20. Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) even if the employer is filing an application under the optional recruitment for college and university teachers and/or Schedule A provisions?
21. The Prevailing Wage Determination provided by the State Workforce Agency (SWA) was incorrect or incomplete. What do I do?

Recruitment Report
1. How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected?

Job Requirements/Duties
1. Can business necessity be used to justify requirements which exceed the occupation's Specific Vocational Preparation (SVP) and/or are not normal to the occupation involved in the employer’s application?
2. Can the employer include a requirement for a foreign language?
3. How do you know if the job description contains requirements beyond those considered normal for the occupation? Does informing the State workforce Agency (SWA) on a prevailing wage determination request that the job contains requirements not normal to the occupation meet an employer’s obligation to inform the Department of Labor of these requirements?

Alien Experience
1. Under what circumstances may the alien use experience gained with the employer as qualifying experience?
2. For purposes of determining whether the alien gained experience with the employer, would an affiliate abroad or an acquiring company be considered an employer?
3. Does the alien beneficiary need to have a bachelor’s or higher degree to qualify for a professional occupation?
4. Is the employer permitted to accept an equivalent foreign degree?
5. Is the employer permitted to accept alternative job experience/qualifications?
6. I need to enter the years of experience, education, or training on my ETA Form 9089. How do I do this? What if it's a range?
7. 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?

College and university teachers—recruitment
1. Are college and university teacher occupations included in Schedule A?
2. If an application is for a college or university teacher who does not qualify as a college or university teacher of exceptional ability what provisions apply?
3. If an application for a Schedule A college or university teacher is denied, is the employer permitted to file for a labor certification under § 656.17?
4. Are the recruitment provisions different for college and university teachers?
5. Is the employer required to provide notice of filing if an application is filed on behalf of a college and/or university teacher selected in the competitive selection and recruitment?
6. Does the use of an electronic national professional journal satisfy the advertisement requirement under the college and university teachers' special recruitment and documentation provision?
7. Must the notice of filing contain the rate of pay for an application filed on behalf of a college or university teacher selected in a competitive selection and recruitment process?
8. Must a prevailing wage determination be obtained from the State Workforce Agency (SWA) if the employer is filing an application for a college or university teacher under the optional recruitment and documentation procedures provision?
9. When must the advertisement for the job opportunity be placed in the national professional journal under the optional special recruitment provision?

Schedule A—qualified physical therapists, professional nurses, or aliens of exceptional ability in the performing arts, sciences or arts, to include college and university teachers
1. What is Schedule A and who qualifies?
2. Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?
3. What form is used to file an application for a labor certification for Schedule A occupations?
4. Must the employer request a prevailing wage determination from the State Workforce Agency (SWA) if filing under Schedule A?
5. If filing an application under Schedule A, must an employer provide notice of filing?
6. If an application for a Schedule A occupation is denied is the employer permitted to file for a labor certification for a physical therapist or professional nurse under the basic process, § 656.17?
7. Is it true that the Commission on Graduates of Foreign Nursing Schools (CGFNS) examination is not acceptable as a means of obtaining a labor certification for professional nurses under Schedule A?
8. What documentation must the employer file when seeking a Schedule A labor certification for a professional nurse?

Household domestic service workers, bookkeepers, laborers, etc.
1. Does PERM have a provision similar to, or the same as, the Schedule B provision in the regulation in effect prior to March 28, 2005?
2. If Schedule B under the regulation in effect prior to March 28, 2005, has been eliminated and there is no longer a waiver provision for those occupations listed in Schedule B such as household domestic service workers, bookkeepers, laborers, etc., does that mean employers are not permitted to obtain a labor certification for those occupations?

Performing arts
1. What are the procedures to be followed in filing applications on behalf of aliens of exceptional ability in the performing arts formerly processed under the special handling procedures in the former regulations?

Audit
1. Will there be certain responses to questions on the Application for Permanent Employment Certification, ETA Form 9089, that will automatically trigger an audit?
2. When, during an audit, is there a 90 day suspension of the audit?
3. In the event of an audit, can an application be withdrawn?
4. Can the employer submit alternative evidence in the absence of primary evidence in response to an audit request?
5. The United States Citizenship and Immigration Services (USCIS) has posted a sample of a Notice of Filing for a Schedule A permanent labor certification on their website. Will the Department of Labor accept/honor such a posting as sufficient proof of the Notice of Filing for a non-Schedule A permanent labor certification?

Certifications
1. Procedure for requesting a Duplicate Labor Certificate. ETA-9089.

Revocation
1. What is revocation?
2. What are the criteria for revoking approved labor certifications?
3. Is there a time limitation for revocations?

Invalidation
1. What is invalidation?

Certifying officer Review and Board of Alien Labor Certification Appeals (BALCA) questions:
1. Is the employer permitted to request a review by the Certifying Officer of a State Workforce Agency (SWA) prevailing wage determination?
2. Is the employer permitted to request a review of the Certifying Officer's prevailing wage determination?
3. What recourse does the employer have in the event a labor certification is denied or revoked?
4. For prevailing wage appeals, when does the 30 day clock start running to file an appeal of the State Workforce Agency (SWA) determination?
5. If my application for certification is denied, how long do I have to wait before I can re-apply?
6. When does the Department of Labor consider a request for review to be pending with the Board of Labor Certification Appeals (BALCA) and how will the Department process such appeals?

Prohibition on Substitution (Fraud Rule)
1. What is the effective date for the prohibition on substitution?
2. What is the scope of validity of a permanent labor certification for which a substitution request has been made?

Prohibition on Improper Payments and Transactions (Fraud Rule)
1. How does the Department define "sale, barter, or purchase" of a labor certification?
2. How does the Department define prohibited payments for "activity related to obtaining permanent labor certification?"
3. What are activities relating to obtaining permanent labor certification?
4. Does the rule prohibit reimbursement agreements?
5. What should employers do who have entered into contracts where payments from aliens are either owed after July 16, or owed prior to July 16 but not paid until after July 16?
6. What should attorneys do who have entered into contracts where payments from aliens for labor certification preparation and filing are either owed after July 16, or owed prior to July 16 but not paid until after July 16?
7. Do the regulations require attorneys to modify contracts for dual representation entered into before July 16, 2007?
8. Do the regulations permit counsel for the alien to voluntarily represent the employers on a pro bono basis?

Debarment (Fraud Rule)
1. When may the Department debar an employer, attorney, or agent?
2. When does an approved labor certification expire?

Backlog Elimination Centers

Elimination Center Phasedown Part 1
1. Are the Backlog Elimination Centers (BECs) still open, or did they close?
2. My case is not yet completed; can I still find out the status of the case?
3. My case is still listed as “In Process” on PDS. Will the BEC complete my case?
4. My case is listed as Certified on PDS, but I have not yet received my certification in the mail.
5. My case was closed at the State or Regional Office; will the BEC be contacting me about my case?
6. The applicant, attorney, or representative for the case did not respond in a timely manner to correspondence and the case was closed. Will the BEC consider re-opening the case?
7. An application was sent to the State years ago, but I have not heard anything from the BEC. What is the status of such a case?
8. My case was denied by the Certifying Officer at the BEC, but the employer or their attorney has appealed this decision to BALCA. Who will handle the case if further action is required by the BALCA decision?

Extended RIR Conversion Date
1. Why might an employer want to convert a TR application to RIR?
2. Is there a date by which an employer's original application must have been filed in order to be eligible for conversion from TR to RIR?
3. Who may request RIR conversion?
4. Are applications for Schedule B occupations eligible for RIR conversion?
5. Is there a date before which an employer or their agent must send a request for RIR conversion to the BEC?
6. Will the BEC delay recruitment on a TR application so that the employer can request RIR conversion?
7. What is the supporting documentation required for a request for RIR conversion?
8. How should an employer or the employer's attorney send in an RIR Conversion request to the BEC?
9. How will the BECs process requests for RIR conversion?
10. What happens if the RIR conversion request is granted?
11. What happens if the RIR conversion request is not granted?
12. What if an employer has already had their RIR status denied, or has attempted to convert to RIR previously, is such an application eligible for RIR conversion?
13. In order to establish a "pattern of recruitment," which date is used as the reference point – the date the original application was received or the date the RIR conversion request is received?
14. Can an employer requesting RIR conversion lose their "priority date" for the application?
15. Does the original application need to be withdrawn to request RIR conversion?
16. Does the Prevailing Wage used to establish a pattern of recruitment need to be 100% of the current prevailing wage for the occupation?
17. Can an employer request RIR conversion for a closed or withdrawn application?

Public Disclosure System
1. What should I do if my case status is "Closed" but I do not believe it should be closed because I never received a 45-day letter?
2. What should I do if I do not have a case number because I never received a 45-day letter or any correspondence from a Backlog Elimination Center (BEC)?
3. I have a case number but it begins with a "T", the Public Disclosure System says I need a D- or P- case number. What should I do?
4. I entered my case number but no case information was found. What should I do?
5. My case has been "In process" the last few times I checked. Is something wrong? Is my case stuck?

What if I have not been contacted?
1. Why have I not been contacted by the BEC or received any information about my case?
2. What should I do if I have not been contacted by a BEC at all about my case?
3. Do I have to send my request within a specific time period?
4. What response can I expect from the BEC to my request?
5. What will the BEC do about my case when they receive a request?
6. To whom should I send my case documentation for a case that could NOT be located at the BEC?
7. How will a decision be made regarding the sufficiency of information for my case after I have sent in the documentation?
8. What response will I get from the BEC after I send in the documentation for my case that could not be located?
9. Who may make the request regarding a "no contact" case?
10. If I send in the required information about my case, will I have to respond to a Center Receipt Notification Letter (CRNL) indicating that I want to continue?
11. Should I use the procedure described here if I have already heard from the BEC that my case was closed, or have another question about a case?
12. I've already e-mailed a request about a "no contact" case to the "no BEC contact" e-mail address prior to this announcement, but have not heard anything, should I send another request?

Case Processing
1. During the public briefings, the Department indicated that there will be 2 processing tracks—Reduction in Recruitment (RIR) and Traditional Recruitment (TR). As to the First in-First out (FIFO) principle, does this mean RIR cases will be separated or distinguished from permanent TR cases?
2. Will the Backlog Processing Centers (BPC) maintain separate tracks for a) traditional filings; b) RIR filings; and c) special handling filings? If not, why not?
3. How is the 2 track system going to work, that is the RIR and TR streams? What resources will be allocated to each? What is the time period for each? Will the resources be allocated such that the last TR case and RIR case will be adjudicated together at the end of the 24-30 months?
4. Does the 24-30 month processing projection apply to both RIR and TR cases or will the RIR queue get some preference?
5. Are cases being assigned a new case number or is the current SWA or Regional Office number being retained for tracking purposes?
6. When will I receive my 45-day letter?
7. The alien has a child who is about to "age-out." What can be done to expedite this application?
8. The employer has been acquired by another company. The new company still wants to hire the alien. What do we need to do?
9. The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." What do I need to do?
10. The message on my Corrections List states, "Basic Rate Per is a required entry." The amount of pay is included on the application. What's the problem?
11. Does the BPC case continuance letter need to be signed only by the employer or can the attorney of record sign?
12. I am the attorney of record for a permanent foreign labor certification case. Our firm has moved and wishes to notify your office of this change. How do I do this?
13. Is there any centralized way to get an attorney's current address into your system at the BPCs?
14. I am a new attorney of record for a permanent foreign labor certification case. Our firm wishes to notify your office of this change. How do I do this?
15. The message on my Corrections List states, "Failed Existence Check: Employer's address/phone number does not reference back to employer's name." What should I do to resolve this problem?
16. The message on my Corrections List states that, "Consulate Location is a required entry." The alien is currently in the U.S. and will apply for adjustment here. Why must I enter a consulate location?
17. The employer has moved to a new address. How should we notify the Backlog Processing Center of this change?
18. The employer has changed names. Do we have to submit a new application or may we change the original application? How should this be done?
19. Our office recently received a request for "corporate documents" from the BPC. The petition was for a housekeeper. Is this request sent in error or how do we respond?
20. Are all cases filed between 1/1/05 and 3/28/05 to be processed by the BPC rather than the Atlanta or Chicago Processing Centers?
21. Many clients are anxious because we have not received the 45-day letters from the Backlog Processing Centers in connection with their application. How can we follow up on status of cases and at what point should we worry about not getting a letter?
22. How will RIR and TR priority be handled over PERM cases?

REDUCTION in RECRUITMENT (RIR) Conversion Hold Harmless Opportunity
1. What is the Conversion Opportunity?
2. Why would an employer want to convert its TR case to RIR using the hold harmless opportunity being offered?
3. Who is generally eligible for RIR conversion under this "new" opportunity?
4. What is the "hold harmless" benefit for RIR conversion?
5. What are the steps under this opportunity?
6. What types of cases are appropriate for RIR conversion?
7. If an employer's job opportunity has a SOC code that is not within one of these categories, is the employer prohibited from filing an RIR conversion request?
8. Under this opportunity, how long does the employer have to recruit and prepare the RIR conversion package once the employer sends in the "intent to convert to RIR" e-mail?
9. What do I need to do to participate and ensure that I can begin recruitment for RIR conversion under this "hold-harmless" opportunity?
10. Will the employer get an e-mail confirming receipt of its request?
11. Can an employer send one "intent to convert to RIR" e-mail for multiple cases?
12. What if the BEC has already initiated job order activity on the employer's case before the employer sends in the e-mail indicating the intent to convert to RIR status under this opportunity?
13. What if the employer has begun recruitment to convert the application to RIR status and has published ads? Can the employer still file for RIR conversion under this opportunity?
14. What if an empoyer submitted an "Intent to Convert to RIR" e-mail prior to the January 20, 2007 deadline, but shortly thereafter, received a letter explaining that the BEC has initiated job order activity on the case and informing the employer to begin recruitment?
15. How will an employer know that a TR case has been successfully converted to RIR?
16. What if an employer receives a prevailing wage from the BEC and wants to challenge it?
17. What if the application in not sufficiently complete for the BEC to make a prevailing wage determination?
18. When an employer or its representative receives an e-mail with the prevailing wage determination from the BEC in response to the intent to convert request, does that mean that the BEC has determined that the application is free of deficiencies?
19. What will the BECs accept as constituting a Pattern of Recruitment for the purpose of an RIR conversion request?
20. What changes is an employer permitted to make to its application prior to RIR conversion?
21. What should an employer’s recruitment package look like? What should be in the recruitment results report?
22. What if an applicant or its designated attorney or agent sends in an e-mail indicating an intent to convert to RIR, but fails to send the RIR conversion package to the BEC postmarked by April 1, 2007?
23. What if an employer sends in an RIR conversion package on time, but the BEC denies the request to convert to RIR?
24. What are reasons an RIR conversion would be denied?
25. If an applicant is unsure at this time whether it wishes to convert to RIR, may it still convert to RIR later? Will the applicant still receive the “hold harmless” benefit?
26. Can an employer conduct all recruitment in 30 days or less?

REDUCTION in RECRUITMENT (RIR)
1. We are receiving letters from BPCs that are out of order from the dates that they were received by DOL in San Francisco. We have several RIR cases filed 4 months before other RIR cases that we have not received letters. Please explain given First In-First Out.
2. Will an RIR case that has been pending at the federal level for about 1 year be transferred to the Backlog Center, if there has been no decision or notice of finding issues?
3. We called EDD (CA) and heard they will be accepting RIR cases for "another month or so," but we are not sure where do we send RIR cases after EDD cut off date but before 3/28/05?

TRADITIONAL RECRUITMENT (TR)
1. We have some long pending traditional cases that were transferred from Iowa to Chicago in October 2002 and beyond and are still pending. We have not received notice that the cases have been transferred. When do we start to worry?

CERTIFICATIONS
1. Procedure for requesting a Duplicate Labor Certificate. ETA-750.

TRANSFER OF CASES
1. How can we know where a case goes?
2. When were state cases sent to the BPC?
3. Are "unopened" cases from the SWA also being transferred or just "unopened" cases that have reached the DOL Regional Offices?
4. How do you know if any cases transferred from San Francisco Regional Office to the BPCs were lost?
5. Can we assume that if our Region’s cases have already been moved to a BPC, then these cases are among the earlier filing dates and we can expect them to be processed soon according to FIFO?

TIMING and ACCESS to INFORMATION on CASE STATUS
1. Are all backlogged cases expected to be entered in the database by 3/28/05 so that employers can check status on-line?
2. When do you expect the BPC will begin adjudicating cases?
3. In order for attorneys to be able to make a decision as to withdrawing a current case and refiling it as PERM, it is necessary to know (approximately) what the backlog is (or the priority date) of cases that are being handled at the BPC. Will something like this be made available?
4. What will happen to SWA opened cases if a SWA fails to complete the processing by 3/28/05? Will they go to the national processing queue for processing?
5. When will a public case information system be up and how will we access it?
6. Once the 45-day letter is received by a backlog center, approximately how soon will labor certification determinations be made?

REGIONAL OFFICES
1. Regarding RIR cases sent from Atlanta: a) which BPC has them; b) how can we get an idea of processing times, and c) where we have a situation with children who are aging out in July, who can we contact?
2. How many Regional Offices are there now?
3. Since Atlanta and Chicago are the only national processing centers, what are the functions of all other Regional Offices other than Dallas and Philadelphia?

H-1B Specialty Workers

1. What is an H-1B?
2. How do I apply for an H-1B visa?
3. Must I file the LCA online?
4. Can I file the LCA by fax?
5. Can I file the LCA by U.S. mail?
6. How long will it take to receive the certification or denial?
7. Is there a way to check on the status of a case?
8. Can an H-1B worker change employers?
9. How long can a foreign worker remain in an H-1B status?
10. Must an H-1B worker be employed full time?
11. Can a foreign worker travel outside the U.S. while under an H1-B status?
12. Can an H-1B status worker immigrate permanently to the U.S.?
13. How can I get H-1B Disclosure Information?
14. How do I file an H-1B complaint?

H-1C Nurses in Disadvantaged Areas

1. What is the H-1C visa program?
2. What criteria must a hospital meet to employ temporary foreign RNs under the H-1C program?
3. Where can I find a list of Health Professional Shortage Areas as of 1997?
4. What qualifications must a foreign individual have to qualify as a "registered nurse" under this program?
5. How does a qualified hospital obtain authority to employ H-1C nurses?
6. What special obligations must a hospital employing foreign RNs meet under the H-1C program?
7. Can I hire a nurse under a different program?

H-2A Temporary Labor Certification (Agricultural)

1. What is an H-2A certification?
2. How long is H-2A valid?
3. What constitutes a temporary need for H-2A temporary labor certification?
4. What is the required time frame for filing an H-2A temporary labor certification application?
5. If my application is denied, can I still file with the USCIS?

TEGL 11-07, Change 1 Questions from SWA Training Webinars – Round 1

1. For states in which H-2A processing takes place in only certain locations, should employers’ advertisements direct applicants to the nearest local State Workforce Agency (SWA) office or the nearest location that processes H-2A applications?
2. Now that America’s Job Bank is no longer operable, is there a list of acceptable or preferred sites on which SWAs should circulate electronic job orders?
3. How will a SWA know the date foreign workers depart for the place of employment? Who determines what amount of time is reasonable to allow foreign workers to travel from their homes to the place of employment?
4. Why must the SWA, and not the employer, make a determination that certain workers are eligible to work legally in the United States?
5. Which SWA official must complete Form I-9 and retain related records?
6. Why are SWAs only required to verify employment eligibility for workers referred to H-2A job orders?
7. Is it discriminatory to verify employment eligibility only for workers referred to H-2A job orders? Does it matter whether the majority of workers referred to H-2A job orders are of a particular national origin?
8. . The Form I-9 handbook indicates Forms I-9 should not be completed for job applicants, but should only be completed for people actually hired. When should SWAs complete the I-9 process?
9. When must a SWA issue a certification to an employer? Should SWAs send copies of completed Forms I-9 to employers?
10. What information must be contained in the referral notice?
11. If a SWA refers the same worker to multiple H-2A job orders, must the SWA complete a new I-9 for each referral?
12. What will happen if a SWA completes Form I-9 and DHS discovers the worker is not actually authorized to work?
13. Are SWAs required to complete Forms I-9 for all H-2A referrals on/after December 15, 2007?
14. What relevance did the document portion of the training have on TEGL 11-07, Change 1?
15. Form I-9 instructions indicate an employer may accept a receipt for a document. Why did the training indicate SWAs may not accept receipts?
16. May a SWA accept a document that expires on the day it is examined?
17. When must a SWA require a document with a photograph?
18. When may a worker present an I-94 as documentary evidence of identity and employment authorization?
19. Must the second identity document under List B be issued by a U.S. government entity, or may it be issued by a foreign government entity?
20. When will E-Verify be available?
21. How can a SWA comply with the TEGL if state law prohibits the use of E-Verify?
22. Is there an advantage to using E-Verify?
23. Is there a cost associated with E-Verify? Which SWA staff will have access to E-Verify?
24. How can SWAs use E-Verify if E-Verify can only be used after a worker is hired?
25. Is there any concern regarding reports that E-Verify is an inaccurate system, especially for naturalized U.S. citizens?
26. Who will be monitoring SWA participation in the I-9 process?
27. What steps will be taken to protect SWAs from abuse by agents who wrongfully accuse SWAs of non-compliance with DOL regulations?
28. Please define the term “SWA.”
29. Please define the term “employment eligibility.”

H-2B Temporary Labor Certifications (Nonagricultural)

1. What is an H-2B certification?
2. How long is an H-2B labor certification valid?
3. What constitutes a temporary need for H-2B temporary labor certification?
4. What is the required time frame for filing an H-2B temporary labor certification application?
5. What if my application is denied, can I still file with USCIS?
6. Does the USDOL have a checklist that H-2B stakeholders can use to verify that all the required information and documentation is included in the H-2B application?
7. What form do I use for "returning" H-2B workers?
8. Who is authorized to make changes to the ETA Form 750, Part A?
9. Is it permissible for an employer to file a single application that will cover all his temporary employees during the entire period of need where the work will be performed in disparate states, e.g., in California and Florida?
10. What defines a Metropolitan Statistical Area (MSA)?
11. Assuming we have more than one (1) work site location within an MSA and different prevailing wage rates exist, which rate do we write on the ETA Form 750, Part A, and use in subsequent advertising for recruiting U.S. workers?
12. Assuming we have more than one (1) work site location within an MSA that cross SWA jurisdictions, where do we file the H-2B application?
13. When completing the ETA 750 form(s), specifically item #7, how should we indicate the multiple locations within the MSA?
14. With regard to the required supporting documentation to support Item 18b, should this documentation be filed with the initial ETA 750, or is this information that is not needed and/or reviewed until the final determination. For example, is it sufficient to send all of the supporting documentation with the final application, which also will include advertising and recruitment efforts?
15. Is it permissible for an employer to file a single application where multiple worksites are located within a Metropolitan Statistical Area (MSA) and the worksites do not cross SWA jurisdictions?
16. Please clarify the difference between seasonal and peakload. We have a landscaping business, which requires more workers in the spring, summer, and fall. Are we seasonal or peakload?
17. Are employers required to submit the summarized monthly payroll report to substantiate a seasonal or peakload need under the H-2B visa classification?
18. Do we have to provide all the documents listed TEGL 21-06, e.g., contracts, letters of intent, invoices, and payroll reports? How many supporting documents are necessary in order to establish a need for foreign workers with respect to monthly invoices, contracts and letters of intent?
19. How many letters of intent, contracts, or monthly invoices do we send to prove our need? If we have 150 invoices, does DOL want them all?
20. What documents should a new company provide if they have no records for temporary need such as payroll records or invoices from the previous year?
21. If we did not receive our approval this year until May, but needed the workers in March, and could not open until we received our workforce, how will we be able to prove our need next year for March?
22. Are payroll reports required for all positions in the facility or company or just for the position for which H-2B workers are requested?
23. Should we include American workers, other foreign workers (non-H-2B) and H-2B workers in the temporary column of the payroll summary reports?
24. Are employers required to submit a sample advertisement to the SWA for approval prior to publication in a newspaper of general circulation?
25. Are employers required to advertise on a Sunday in circumstances where the SWA has recommended a newspaper with a daily circulation?
26. Is it necessary that a union be contacted in every instance when engaging in recruitment with the State Workforce Agency (SWA)?
27. Many newspapers have gone to electronic tear-sheets. Are these acceptable?
28. Is an employer required to engage in advertising and recruitment prior to submitting an H-2B application with the State Workforce Agency?
29. Regarding advertising efforts, would we need to advertise in each specific county/state within the MSA, or is it sufficient to advertise with ONE NEWSPAPER that covers all States within the MSA where the employees will be employed during the peak season?
30. Is it permissible for multiple employers to recruit for U.S. workers using a single newspaper advertisement?
31. USCIS approves a work permit for the employee in accordance with the Department of Labor’s certification. If employers must file a separate ETA 750 for each STATE where the H-2B worker is working, is the employee required to carry multiple work permits with him for the State that he is working in at that time?
32. How should an employer advertise if the area of intended employment does not have a newspaper that runs 7 days a week?
33. Can the DOL develop a process to accelerate the labor certification process for occupations where there is currently a labor shortage?
34. Once the visa cap for the first half of a fiscal year has been reached, assuming the visas continue to be granted on this basis, can the DOL amend previously certified labor applications so that the date of need can start in the second half of the fiscal year?
35. What are the typical forms of supporting documentation to justify a temporary need for horse groomers?
36. Is a seasonal or peakload need established if the employer's customers, because of budget constraints or a holiday season, do not request the labor/services during one certain period of the year?
37. What is the process if an employer needs to extend its period of need for H-2B workers?
38. How should an employer request a copy of its final determination letter indicating that its application has been denied?
39. If a foreign worker would like to work for a new employer (in a different state, but similar position), must the new employer file a new ETA Form 750 and begin the H-2B process as though it were for a new employee?
40. What type of supporting documentation should be submitted by an employer seeking temporary labor certification based on a one-time need?
41. Is it permissible for a recruiting agency to pass the employer’s legal and administrative costs of applying for H-2B visa certification onto the H-2B workers?
42. According to TEGL 21-06, Change 1, Section IV.F, an employer shall document that union and other recruitment sources appropriate for the occupation and customary in the industry, were contacted and either were unable to refer qualified U.S. workers or were non-responsive to the employer’s request. When an employer is instructed by the SWA to contact a union, who determines what is appropriate for the occupation and customary in the industry?
43. Is it permissible for the State Workforce Agency to refer U.S. candidates who applied for the position after the conclusion of the 10-day job order? And should SWAs be required to issue an end of recruitment report?
44. When a SWA is referring a candidate to the employer, what can be done to establish consistency for the SWA’s method of communicating to employers? If employers include prepaid FedEx envelopes for SWAs to forward the case to USDOL, will SWAs be required to use the prepaid FedEx?
45. Is there a required time period in which DOL must process cases?
46. What are the remedies available to an employer if the SWA did not forward an employer’s necessary supporting documentation to the National Processing Center?
47. How can an employer obtain a duplicate certified ETA Form 750?
48. Will an employer’s case be delayed if the employer requests assistance from a Member of Congress? During an inquiry from the employer’s Member of Congress, will the DOL continue to communicate with the employer’s agent/attorney?
49. If the employer clearly identifies and describes a temporary need in its needs statement, is it necessary to specify whether that temporary need is peakload or seasonal?
50. If a criminal background check is required for domestic workers and is company policy, can this be listed as a requirement on the ETA Form?
51. When the application clearly establishes representation by an agent or an attorney, is it appropriate for the SWAs to discourage an employer from utilizing their services?
52. Does the DOL recognize any distinctions between job and labor contractors?
53. What steps should a farm labor contractor applying for temporary workers in tree planting and related reforestation occupations take if its Certificate of Registration will expire before its listed period of need in its ETA Form 750, but has not expired when it submitted the application to the DOL?
54. I have a need for a worker to perform similar combined duties. May I advertise and seek to employ an H-2B worker to perform a combination of duties?
55. Are landscape workers permitted to perform activities that involve construction of pathways and patios?
56. In circumstances where the employer is requesting certification for a job opportunity (e.g., landscaping, construction) containing multiple worksite locations within the area of intended employment, how should the employer complete the ETA Form 750, Part A, specifically item #7, and conduct the required advertisement to recruit U.S. workers?

D-1 Crewmembers Certification

1. What is a D-1 crewmember certification?
2. Are there other exceptions?