PERM –Dawn of a New Age in Employment-Based

By Jeffrey A. Margolis

COPYRIGHT NOTICE:

THIS ARTICLE ORIGINALLY APPEARED IN CORPORATE COUNSEL – NY MAGAZINE, MARCH 14, 2005–ALL RIGHTS RESERVED TO AMLAW PUBLISHING–REPRRINTED BY PERMISSION
IN THE PAST few months some significant new regulations have been issued by the U.S. Department of Labor (DOL) and the Immigration Service (formerly INS, now U.S. Citizenship and Immigration Services or USCIS). This month, on March 28, a new program for foreign labor certification goes into effect. The Program Electronic Review Management (PERM) seeks to streamline electronic filing of applications for permanent employment-based immigration through online filing and adjudication. 20 CFR 656 et seq. (Federal Register, Dec. 27, 2004).

The Department of Labor has long had detailed regulations concerning foreign workers seeking admission to the United States for employment. The “labor certification” process is the second most popular means of obtaining U.S. permanent residence (the first being a family relations-based case). “Certification” (case approval) may be obtained where it can be demonstrated through verifiable recruitment efforts that there are insufficient qualified U.S. workers available and willing to perform the work at wages that meet or exceed the prevailing wage paid for the occupation in the area of intended employment. Foreign labor certification programs are designed to ensure that the admission of foreign workers into the United States on a permanent or temporary basis will not adversely affect the job opportunities, wages, and working conditions of U.S. workers.
Employment-based immigration has long been a complex and time-consuming process that involved a number of government agencies within the DOL and State Workforce Agencies (SWA), and then upon issuance of a federal “certification,” the USCIS and, in some cases, the Department of State (consular visa processing).

The traditional labor certification processing program, and, even the so-called RIR — Reduction in Recruitment program (optimistically designed to expedite processing) — have fallen woefully behind, such that there is a backlog of 300,000-plus cases and delays of up to three years in processing these cases. In late December 2004, the labor department published a final regulation completely overhauling the present system for permanent labor certification processing, holding out the tantalizing promise of making a two- to three-year processing time, two to three months! Thus, we have the PERM program, effective March 28, with electronic filing as its hallmark.
Top 10 Highlights

1. Recruitment for position before filing application. The recruitment period is a maximum of 180 days, and a minimum of 30 days before filing.
PERM requires two Sunday newspaper ads (plus three other forms of recruitment, such as online job search, employer Web site, on-campus recruitment, job fairs, on-campus recruiting and the like, for professional positions). A job order must be filed with SWA, which runs for 30 days. On-site posting of job opportunities must run a minimum of 10 days.

2. Prevailing wage (at 100 percent) must be offered based on data obtained from the SWA (current rule provides that 95 percent is sufficient.).

3. Electronic form (new ETA 9089) with online completion (employer attestations) and filing. (the DOL Web site for this program is www.workforcesecurity.doleta.gov/foreign)

4. There is no fee for filing.

5. Response from the Department of Labor takes an estimated 45 to 60 days as either “certification,” denial, or notice of audit.

6. If the department sends a notice of audit, then a complete file with copies of ads, and detailed reports would have to be submitted to it. Criteria for the audit will include triggers as to inadequate recruitment efforts or simply random selection to assure integrity of the system. Employers are required to maintain supporting documentation for five years.

7. Cases pending under the present system will continue to be processed under current regulations and to expedite same, two BEC’s (Backlog Elimination Centers) have been established.

8. Pending cases can be withdrawn and converted to PERM processing (re-filed), provided the “identical job opportunity” is offered. New recruitment criteria (typically more extensive then under current regulations) would have to be followed. If done correctly, the conversion can be done without loss of the first filing priority date (place in line for visa issuance). Certain cases which are quite far along in the pipeline may not be converted.

Pending cases that are not converted will remain on file and adjudicated under the current rules. The Department of Labor will continue to accept applications under the current system until March 27.

9. Once PERM becomes effective, employers will not be allowed to elect filing new cases under current processing rules.

10. In terms of certification, some suggest that certain professional cases are more likely to be certified under current regulations. To take one hypothetical, assume a sponsored alien has relatively little experience in the field and is a recent college graduate. Present procedures would allow for the lawful rejection of an American worker who did not have any one of the employer enunciated experience elements required for the position. Under PERM, an employer could not lawfully reject an American worker who could gain the necessary qualification with a “reasonable” period of on-the-job training.
While the above can necessarily only give a brief overview of 300-plus pages of new regulatory material, clearly PERM holds out the exciting prospect of real reform of a system that has collapsed under its own weight. Additionally, what many members of the Immigration Bar saw as highly unfavorable program changes under the proposed regulations (published in 2002) have been re-thought by DOL and eliminated from the final rule.

Companies with HR plans that include permanent resident sponsorship through the Department of Labor should evaluate all pending cases and strategize as to conversion over to the PERM program. In most cases, this will entail a substantial outlay for new ads and other PERM mandated recruitment. To many business people the time saved will be well worth the money.
Jeffrey A. Margolis, the principal of Margolis Law Firm in New York, has long maintained a specialty in business-related immigration matters.

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