20C.F.R. § 656.10(c)(10) requires an employer to attest in a PERM application that the “job opportunity is for full-time, permanent employment for an employer other than the alien.”

The term “permanent” is not defined in either the INA or DOL regulations, but in The Matters of Albert Einstein Medical Center and Abington Memorial Hospital [BALCA en banc, November 21, 2011)] the Board of Alien Labor Certification Appeals (BALCA) found that “the regulatory requirement of an offer of permanent employment is focused on a snapshot of the good faith intention of the employer at the time the labor certification is filed to make an offer of permanent employment – that is, indefinite employment of a lasting and continuous nature – within the expectations of any typical job offer. An employer that has no intention to continue the employment of the immigrant beyond a set term of years cannot have the requisite intent.”

In its review, BALCA consolidated the appeals of numerous permanent labor certification applications filed on behalf of senior medical residents, which had been denied by the Certifying Officer, on the basis that the residency positions were not “permanent.” BALCA concluded that although the employers’ need was permanent, the job opportunity being offered was not, since “Medical residencies, as commonly understood, last only three to eight years and consequently cannot meet this definition of permanent employment. The hospital is committing only to employment of the worker for the duration of the residency, not to indefinite at-will employment.”