Model Comment on DOL’s PERM Regulation

Assistant Secretary for Employment and Training
U.S. Department of Labor
200 Constitution Avenue, NW, Room C-4318
Washington, D.C. 20210
Attn: Dale Ziegler, Chief, Division of Foreign Labor Certification

RE:  Comments on “Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System” 67 Fed. Reg. 30466 (May 6, 2002)

Dear Mr. Ziegler:

We are writing to comment on the Notice of Proposed Rule Making issued by the Department of Labor (DOL) in the Federal Register on May 6, 2002.  These comments are being submitted by the July 5, 2002 deadline, as indicated in the Federal Register.

Although the proposed changes to 20 C.F.R. Sections 655 and 656 (PERM) include some positive steps toward creating an improved framework to process labor certifications quickly and reduce application backlogs, we are concerned that the following provisions do not reflect contemporary business practices and may promote instability in the job market.   

• In order to meet the demands of business, employers must be able to recruit for the actual position needed and list all skills and applicable experience required for the position.  This proposal would severely limit employers’ ability to designate specific skills needed for a position and would completely eliminate the business necessity rule. These restrictions would limit employers to the generic DOT/O*NET job descriptions and leave them incapable of revising job duties in accordance with changes in technology, future advancements and specialization, or even in accordance with their own, current business realities.
  
  
• The proposal would limit employers’ ability to list experience from related occupations that may serve as qualifying experience for the position offered.  Employers would not be able to consider an applicant with alternative experience although that candidate clearly could be qualified for the position. Eliminating the alternative experience requirement would prevent employers from staffing in accordance with real-world business practices. 
  
  
• Under this proposed rule, employers would not be able use short, generic advertisements for multiple positions; this would result in a substantial increase in costs for employers who currently file Reduction in Recruitment (RIR) labor certifications.  Requirements that employers list their names on advertisements would conflict with standard practice in many industries, and could lead to disclosure of confidential company information. 
  
  
• The proposed regulation would not allow any experience to be considered that was acquired by a foreign national who worked for any entity that was subsequently acquired by the employer.  This proposal would also eliminate employers’ ability to count specific instances of the foreign worker’s occupational experience if the experience was gained while working for the employer, even if experience was gained while working in a different position than the one described in the labor certification application.  Elimination of the ability to “count” this experience could encourage good employees to leave a long-time employer because of the impossibility of gaining approval of a labor certification with the employer, thus creating inefficiency for businesses and instability in the job market. 
  
  
• The proposal would not let employers reject U.S. applicants who are not even qualified for the position as advertised, if they would be able to eventually acquire the skills in which they are deficient through on-the-job training.  This, combined with the fact that businesses would be unable to recruit for the actual positions needed, is a one-two punch that would serve to severely restrict employers’ ability to hire a qualified candidate for the job.  The result would be time and money spent on extra training, and therefore considerable amounts of productivity would be lost for U.S. companies. 
  
  
• The current regulations allow the actual wage to be within 95 percent of the prevailing wage as determined by the DOL.  Allowing a 5 percent variance is a longstanding practice for the DOL, based on the fact that wage surveys are not an exact science.  The proposed rule would remove this margin, and introduce to the process a myth that the information being relied upon is more precise than it actually is.
  
  
• The proposed regulations would allow the DOL to revoke a labor certification for cause if the certification occurred less than one year from the date of revocation or for an application that hasn’t received a visa number, whichever comes first.  There is no standard laid out in the regulations that indicates the criteria by which labor certifications would be revoked.  If employers are to have certainty in the workplace, they need to have a standard by which this provision would be enforced. 

We urge you to revise 20 CFR Sections 655 and 656 to address the above concerns. 

Sincerely,