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.

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