PERM: The New System of Alien Labor Certification

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On December 27, 2004, the US Department of Labor (DOL) published new rules replacing the current system for processing labor certification applications with a new program, entitled "PERM" (Program Electronic Review Management). The new, rapid electronic program will start on March 28, 2005 (90 days after publication). Labor certification from DOL, which documents the unavailability of qualified U.S. workers for a position that a U.S. employer is offering a qualified foreign national, is the most common route to employment-based permanent resident status. However, enormous processing delays have left many employers and foreign nationals utterly frustrated. DOL recently created backlog reduction centers to process long pending applications and to receive new applications. However, backlogs which now extend for years have yet to be reduced at all. It is yet to be determined if significant backlog reduction in the previous RIR or traditional recruitment labor certification process will actually occur. However, we will keep our clients apprised of any progress in the old system.

Under the new PERM rules, labor certification applications must be submitted online using a new form ETA-9089. PERM requires sworn statements by employers, along with an obligation to maintain detailed records regarding recruitment efforts. Said recruitment records are subject to DOL audit, although it is unlikely that most cases will be audited. DOL anticipates adjudication of most cases filed under PERM within 45 to 60 days, unless there is a DOL audit.

As with the current Reduction in Recruitment (RIR) labor certification process, recruitment under PERM must occur prior to filing. Under the new system, at least two Sunday newspaper advertisements are required, and for professional jobs, additional forms of recruitment such as Internet postings also are required. As with RIR filings, the newspaper ads must include the employer's name, but not the employer's address or the offered salary. In a major departure from the previous procedures, under PERM the employer must list the job for potential referrals with the State Workforce Administration prior to filing. Recruitment must be conducted at least 30 days but no more than 180 days prior to filing. Employers are required to offer 100% of the prevailing wage when testing the labor market for U.S. workers, rather than 95% as previously required. A more accurate four-level prevailing wage system will replace the current two-level system.

It is possible to convert certain labor certification applications filed under the current system to PERM. Labor certification applications may be filed under the current system until March 28, 2005. Thereafter, a pending labor certification case can be converted to a PERM case without losing the foreign national's priority date (their place in line for their immigrant visa, which is a matter of increasing importance because of the growing unavailability of immigrant visa numbers under the State Department Visa Bulletin annual quota system). The priority date can be maintained if the job offer is exactly the same and all PERM-related recruitment requirements are satisfied.

The processing benefits offered by PERM, such as dramatically faster adjudication (2 months vs. 2-4 years) and online filing, are obviously very attractive to employers and foreign nationals.

Whether you should convert a previously filed case should be analyzed on a case by case basis. Factors to consider are: (1) how far along the process your case is, (2) the willingness of the employer and foreign national to take on the added legal expenses and additional recruitment campaign required by the new system (3) legal issues such as 6 year H limits, 7th year H extensions, and the progress of the aforementioned backlog reduction centers.

The basic requirements for PERM labor certification applications are similar to labor certification applications filed under the current system

  1. The employer has complied with the procedural requirements of the regulations for labor certification.
  2. There are insufficient U.S. workers who are qualified, willing, and available for the offered position.
  3. The employment of the foreign national will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

Cases filed under PERM may be subjected to a DOL audit if the application fits a DOL audit profile, or if an employer is randomly selected for an audit. Employers are required to maintain documentation of their recruitment efforts for 5 years. This includes evidence of advertising and other recruitment efforts, as well as a report summarizing responses to recruitment, so that the unavailability of qualified U.S. workers for the position is well documented.

While presently there is no fee for filing a PERM labor certification application, this is expected to change as soon as Congress passes legislation authorizing DOL to collect such a fee.

Jeffrey B. Steinfeld, PC will be providing our clients with updated information on PERM as the system develops. Please feel free to contact Jeffrey B. Steinfeld, PC  to discuss PERM and to decide if your case should be converted to the new system. If you live in the New York / New Jersey metro area, please arrange an in-person consultation in our Hackensack, NJ office.

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