| Implementation of a new system-PERM |
The Department of Labor, Employment and Training Administration, published regulations for Labor Certification for the Permanent Employment of Aliens in the United States: Implementation of a New System (PERM). The final rule was published on 12/27/04. This regulation has been much awaited. The most attractive feature of PERM seems to be the processing time (30 to 60 days). The labor department seems to be processing case within this time frame. Some cases are even getting approved within 30 days. However audited cases are taking longer than 60 days to process. From the trend in our office and other law firms, it seems that 1 out of 15 cases are being audited on a random basis. There are still a lot of unanswered questions about PERM, however things are becoming clear as time passes. I have attempted to give you a summary of what we know so far, and will continue updating you as we receive clarification on each issue from the labor department.
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| When is PERM effective? |
| Effective date: March 28, 2005 |
| How long will the labor certification take under PERM? |
| According to regulations they will take 30-60 days, unless the case is audited, then it might take longer. Lets wait and see. |
| Is regular processing faster or PERM? |
| Regular cases are being sent to the backlog reduction office. Again, we don't know how long cases will take to be processed under the back log reduction program. The DOL has informed us that they aspire to reduce all backlogs within 12 quarters. Lets wait and see. |
| Prevailing wage Vs offered wage. |
| According to the Consolidation Appropriation Act, the prevailing wage offer has to be 100% of the prevailing wage; the 5% deduction is no longer allowed. |
| What changes have taken place with reference to the determination of prevailing wage? |
| Under the old system the Government wage survey had only 2 levels (junior level and senior level). Under PERM 4 levels can be used for each job position (i.e. they have added on 2 intermediate levels). This allows more flexibility with reference to the prevailing wage. |
| Is there a change in determining the minimum qualification required for the job? How does this effect the EB-2/EB-3 classification? |
| Yes, there is a change under PERM. Earlier, the classifications were decided according to the Dictionary of Occupational Titles. For example, under the DOT a Software Engineer would qualify for EB-2 position and the priority dates would be current. However, under the new system another database called the O*Net will be used and under that database, many occupations that previously qualified for EB-2 category will now qualify under EB-3. The consequence of this is that a lot more cases will have to be filed under EB-3. The dates for EB-3 have retrogressed, which means that an I-485 cannot be filed until your date becomes current. Contact our office to find out more details. Having said that, there are ways of overcoming this problem, please contact our office to find out how. |
| What Pre-Filing recruitment steps have to be taken? |
| NOJ has to be posted (this is the same as the present process) In-house media posting (this is a new requirement under PERM) Job order has to be placed with the State Work Force Agency (This is also a new requirement. The employer will receive resumes both from the advertisements that he placed and from the labor department. |
| What are the advertisement requirements? |
| 2 Sunday adv; In cases where professional journal may be appropriate, one of the Sunday adv can be re-placed with the journal. (The old advertisement requirements varied from State to State. Some states required that we wait for a period of 30 days between each advertisement; some states require a recruitment of 6 months. PERM is better, as the requirements are uniform for all States, and the waiting period is also reduced). 3 additional recruitment steps will be required: One of them can be done less than 30 days and the other 2 have to be done between 30 and 180 of filing the case. Contact the office for more information on this. |
| How should the recruitment report be prepared? |
Under PERM we don't need to include name of applicants, resumes don't have to be sent to the labor department along with the application. However, upon audit the labor department may require this information.
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| Can a pending case be converted to PERM? |
| Yes, this can be done. Conversion can be requested before the job order has been placed on the original case. The case will then be processed according to the date that the conversion was requested. Conversion can only be done if the job requirements are identical and the previous petition is withdrawn. When asking for a conversion, one has to be careful that the job requirements are the same. The labor department will decide if the case qualifies for a conversion or not. If the labor department refuses to convert the case, they will assign a new priority date. This will be a loss for the applicant (especially for applicants falling under EB-3 category and for applicants who are completing 6 years on their H-1b and require the labor to be pending for at least 1 year to get the 7th year extension). A better option would be to keep the old case as-is and re-file a new case under PERM without asking for a conversion. This way we may not need to withdraw the old case. Again contact the office for a better understanding of this. |
| What is an Audit? |
| The labor department may ask for additional information by sending an audit letter. This letter can be sent for various reasons. For example, if labor market conditions show that applicants are available, or for other reasons such as questions about employer existence, size of the company etc. If the officer is not satisfied with the information submitted, he will send instructions to that particular employer, to conduct supervised recruitment for the next 2 years on ALL cases that are filed by that employer. This system of blacklisting the employers does not exist under the present law. |
| Can an approved labor certification be revoked? |
| If the grant of the labor certification was not justified, then the labor certification can be revoked. This does not have a time limit (maybe 5 years, as the labor dept does not maintain records for more than 5 years). Under the present law, the labor certification can only be revoked if there is some finding of fraud or misrepresentation. Under PERM the grant of labor cert can be revoked if it was not "justified". We don't know what the term justified means. It seems to have a broader connotation than the existing law. |
| Is there a fee for PERM? |
| As of now, no fee for PERM. However we have an indication that this might change soon. |
| CONCLUSION |
| The process for obtaining a permanent labor certification has been criticized as being complicated, time consuming and requiring the expenditure of considerable resources by employers, SWA's [state workforce agencies] and the Federal Government. Struggling to deal with a backlog of more than 300,000 cases, the Department of Labor has placed its hopes in PERM. We hope that PERM will be a solution, or at least will lead us to the solution of this problem. |
