The Preamble to the PERM Rule appeared in the Federal Register back in 2004 with instructions for recruitment needed to process labor certification applications for foreign workers. All job offers undergo two newspaper ads and 30 days in the state workforce agency databank, but professional positions call for three additional types of recruitment selected from genres approved by the Department of Labor (DOL), including on-line media, hard copy newspapers and journals, job fairs, private or public employment agencies, and employee referrals.
To provide consistency for employers, DOL published a list of professional occupations known as Appendix A and a statement that the list was to be constantly updated. In the sixteen years that have ensued however, no changes have ever been made.
To give further guidance, DOL published an FAQ on the site of the Employment and Training Administration, Office of Foreign Labor Certification:
Q. How does an employer determine whether to advertise under the recruitment requirements for professional occupations or nonprofessional occupations?
A. The employer must recruit under the standards for professional occupations set forth in Appendix A to the preamble of the final PERM regulation.
Employers depend on Appendix A to know which occupations are professional, and which are not, so as to make sure that "it's all good." But where is Appendix A?
As mentioned above, Appendix A can be found in the Preamble to the PERM Rule, in the December 27, 2004 issue of the Federal Register, but this document is virtually inaccessible to stakeholders who do not have a degree in law or a position in government. The only other official place to look, perchance, is a pamphlet containing the official DOL operating instructions known as Appendix D in the Prevailing Wage Determination Policy Guidance, November 2009.
Did you notice what I wrote? To find Appendix A, you must search for Appendix D.
Once the Appendix is located, finder beware! Because Appendix A has not been updated since 2004, new occupations are not on the list, and others have been eliminated or substituted. This means that the list of professional occupations on Appendix A is unreliable.
In a recent case, an employer offered the position of Software Developer, Applications, SOC Code 15-1132, which is not on Appendix A, even though a similar position, Computer Software Engineers, Applications, SOC Code 15-1013, eliminated by DOL in its other databases, continues to appear erroneously on Appendix A.
The application was denied with the rationale that, even though occupation 15-1013 is not Appendix A, the DOL believes that the occupation ought to be on Appendix A, and since the occupation is not where it's supposed to be, the employer is at fault for not knowing that.
To know where Appendix A has gone, here is the on-line link:
https://www.dol.gov/sites/dolgov/files/ETA/oflc/pdfs/NPWHC_Guidance_Revised_11_2009.pdf
Considering these incongruities, and the fact that Appendix A's list of occupations is difficult to track down, employers are encouraged to be mindful and proactive to ensure that the job titles and SOC codes for proffered positions are currently valid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
