- There must be an agreement – not necessarily a written contract, but at least an intention on the part of the employer to offer, and of the employee to accept, employment of indefinite duration;
- The position need not be guaranteed to last forever – that is, a position may be “permanent” even if it can be ended by the employer and the employee at some point in the future; and
- To be “of indefinite duration,” the position must have two characteristics. First, it must be “of lasting duration,” meaning that the person will fill the position for an indefinite period of time – certainly expected to last more than a year, but with no specific ending date, even one that is three or more years away. Second, there must be an “assurance of continuation of employment,” meaning that the employer must have the capability and intention of providing lasting and continuous employment.
DOL Appeals Body Limits Hospitals in Filing PERM Applications for International Medical GraduatesDecember 1st, 2011 by William Stock
According to a recent decision by the Board of Alien Labor Certifications Appeals (BALCA), the Department of Labor’s appeals body, hospitals wishing to retain International Medical Graduates in their medical residency programs will likely not qualify for foreign labor certification during the residency. On November 21, BALCA issued a consolidated decision with regard to seventeen PERM applications filed on behalf of medical residents by Albert Einstein Medical Center and Abington Memorial Hospital. In BALCA’s view, the decision whether to approve or deny the applications turned on whether, in general, medical residency programs may still be considered offers of “permanent employment,” as they have been for the last 25 years or more. In reaching its decision, BALCA first reviewed prior regulations, DOL memoranda, and caselaw, and found that to date, DOL consistently approved labor certifications for positions in medical residency programs. However, BALCA went on to note the absence of a definition of “permanent employment” in the regulations or prior caselaw – including caselaw specifically approving medical resident labor certification — and chose to fashion a new test for whether any position may be considered “permanent employment” and thus eligible for labor certification. BALCA announced a three part test for a position to be considered “permanent:”