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
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
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
To know where Appendix A has gone, here is the on-line link:
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
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.