Labor Certification Made Easier. PERM Final Rule to be Released Soon

The Department of Labor is in the process of amending its regulations regarding the implementation of the PERM program designed to minimize the complications and delays associated with the current procedures for filing of permanent residence applications. The newly revamped system will also reduce the lengthy backlogs from current processing times to as much as 3 years to less than 21 days.

Under the PERM program, employers will be required to obtain a prevailing wage determination from the State Workforce Agency (SWA) where the foreign national will be employed before the application can be filed under the PERM program. The employer will also be required to place a job order with the SWA which would be processed the same as any other job order placed by employers. Similar to the current regulations, the employer will also be required to post a notice of the filing of a labor certification at the actual worksite where the foreign national will be employed. The employer will also be required to conduct recruitment before filing the applications. Recruitment will involve both mandatory and alternative recruitment steps. Mandatory recruitment requires the placement of two print ads at least 28 days apart. The employer must choose three alternative recruitment steps from a list of six recruitment steps as set forth by the regulations.

After the application and the recruitment is complete, the employer will file the application using forms designed for automated processing to minimize manual intervention. The application and the prevailing wage application have been designed to be machine readable or directly completed in a web-based environment. The employer will not be required to submit additional documentation or evidence of recruitment as the new PERM program will rely heavily upon employer attestations. However, the employer should retain all documentation regarding the filing of the application and the recruitment in the event that the employer is audited. If an application is selected for an audit, the employer will be notified and will be required to submit documentation to verify the information stated in the application.

The PERM program, however, will eliminate many current components of the labor certification process. For example, employers will be unable to justify by business necessity specific job requirements which exceed the normal requirements. Most job requirements other than education and years of experience in the job offered would not be allowed. In addition, alternative minimum requirements will not be allowed. Employees can no longer use experience gained at the employer or a contractor of the employer. The employer must meet the prevailing wage and will no longer be able to offer salaries that are up to 5 percent below the prevailing wage. Schedule B and special handling will be eliminated. Schedule B occupations include those that the DOL feels are not shortage positions.

The DOL has a proposed fee component for filing the applications under the PERM program, however this fee has still been undetermined as is dependent upon Congress passing legislations authorizing the collection of fees for this service.

It may be possible to convert existing cases to the new PERM system enabling foreign nationals to keep their priority date. However, the existing case must meet the PERM advertising requirements. Any old cases that are not convertible will continue to be processed under the current system. There are roughly 300,000 cases currently in the system.

Due to significant delays in the publication of the PERM program, many employers are filing traditional labor certification applications to obtain a priority date. The priority date is critical in the extension of H-1B status beyond the sixth year maximum as set forth in section 106 of the American Competitiveness in the 21^st Century Act and the 21^st Century Department of Justice Appropriations Authorization Act . Together, these sections amend the Immigration and Nationality Act by providing that H-1B nonimmigrants can extend their H-1B status beyond the six-year limitation as long as a labor certification application or an immigrant petition was filed more than one year prior to the end of the foreign national’s sixth year in H status.

It is anticipated that a rule will be released sometime late 2003. DOL is still considering whether the rule will be a final rule or an interim final rule. As further information on the PERM program becomes available, Greenberg Traurig will provide updates both on our internet site and future editions of our newsletter.

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