May 7, 2002

Long Awaited PERM Regulations Out For Comment

The Department of Labor ("DOL") published yesterday its long-awaited proposed regulations regarding the filing and processing of labor certification applications for the permanent employment of foreign nationals in the U.S. For several years now the DOL has been drafting regulations to implement a new system for the permanent employment of foreign nationals, referred to as the "PERM" system. The proposed regulations were published in the Federal Register on May 6, 2002 with a 60 day comment period and final rule publication expected in August.

The PERM program is aimed at streamlining the process by which employers apply to hire foreign nationals as immigrants in permanent positions. The regulations create a new filing system and cut back the role of the state workforce agencies (SWA) in the procedure. The regulations address several key issues including:

• Elimination of the requirement that prevailing wage determinations made under the Service Contract Act and the Davis-Bacon Act be used in determining prevailing wages for the purpose of permanent labor certification.
• Requiring employers to conduct both mandatory and alternative recruitment before filing a permanent labor certification application.
• Establishing an automated processing system to review the applications.
• Eliminating the "business necessity standard" which will eliminate an employer’s ability to explain and justify job requirements that are essential to performing the duties of certain positions.
• Limiting the role of the SWA to only providing prevailing wage determinations.
• Eliminating the SWA’s involvement in the processing of permanent labor certification applications.
• Performing audits on randomly selected applications.

The goal is to reduce the average time and personnel needed to process permanent labor certification applications through the use of automated processing and the elimination of the SWA’s role in recruitment and referral of U.S. workers. The new applications are very similar to the Form ETA 9035, Labor Condition Applications currently used in the H-1B program by the DOL. Initially, the applications will be submitted by facsimile or mail. The proposed applications are designed to be machine readable or directly completed in a web-based environment. This advanced system, however, will only be implemented at a future date. Finally, while there is no filing fee for submitting a PERM application at this time, this may change if Congress passes the necessary legislation authorizing a fee.

GT will be providing a synopsis and detailed analysis of the proposed regulations shortly.