In recent pronouncements, the Department of Labor seems to be adopting the “testing the job market” approach to labor certification application. This approach has been advanced by immigration attorneys for many years.

There has been a great deal of publicity surrounding the issue of a law firm’s involvement in recruitment. The largest immigration firm in the country has been notified that all of its cases will be audited based upon an allegation that the law firm was involved in the recruitment process. This confirms our office’s practice of providing advice and checklists with respect to the recruitment process in general, but not being involved in the review of resumes and the determination of whether applicants are, or are not, qualified.

The Department of Labor will go live with a new version of the PERM application (9089) on January 1, 2009. This form has some positive elements to it. For example, the form can handle multiple work sites and eliminates the distinction between experience in the job offered and related experience. The form makes it clear that training and internships can be counted as experience, which is a good development. The form also creates a check off as to whether the employer will consider any reasonable combination of experience, education and training in determining if the applicants qualify for the position.

Our firm has always included this language in the labor certification form. Failure to include it can lead to a denial. The creation of a check off for this language will avoid these denials.

There has been an ongoing debate as to what constitutes “normal” in regards to the PERM question which asks if the minimum requirements set forth in the labor certification application are normal for the position. Many attorneys have taken the position that “normal” should be interpreted in a common sense fashion to represent normal practices on the part of the employer or in the industry. Other attorneys, including our firm, have interpreted the term “normal” to mean consistent with O-NET standards. The new form makes it clear that the latter perspective is consistent with the Department of Labor’s interpretation. Since this has been our firm’s practice since the creation of the PERM process, it will not require any change in how we handle labor certification applications.

Finally, the new 9089 form allows for substitute signatures, which will eliminate difficulties if the individual who authorized the application on the part of the employer is no longer affiliated with that company.