05/27/2004 IMMIGRATION ALERT
PERM IS COMING

 

The long-delayed PERM program (last reported by HLG's Immigration Alerts here: http://www.hammondlawfirm.com/alerts/03.23.2004alert.htm) is about to come on-line.

AILA sources are reporting that the program's regulations will be published on or shortly after June 7, 2004. The program will go into effect four months after publication. Indeed, the Department of Labor is actively recruiting for several PERM-related positions. Humorously, none of the positions appear to qualify for employment-based permanent residency sponsorship, since the positions are temporary in nature.

Two years ago HLG published a comprehensive review of the PERM program based on the 2002 release of preliminary regulations. For your convenience that Summary is re-published below. It is worth noting that it is expected that the latest regulations do contain some changes from the 2002 preliminary regulations.

The Proposed "PERM" Labor Certification Program
The Department of Labor recently issued regulations to severely revamp the labor certification process and to amend some features of the H-1b program. The Department of Labor has planned the new program, called the "PERM" program, for the last few years because of the longstanding criticism that the current labor certification process is complex, time consuming, and involves a significant expenditure of resources on behalf of employers, SESA's and the federal government while doing little to protect U.S. workers. While employers, foreign nationals and immigration attorneys have anticipated the PERM program for several years, the proposed Regulations outline a revamped system that is must stricter than anyone could have reasonably anticipated. Perhaps based in part on the current state of the economy, the proposed Regulations are intended to "maximize protection to U.S. workers" and to deter employers from the tendency to "manipulate" the job requirements "in favor of the alien incumbent to the disadvantage of U.S. workers."

Throughout the proposed regulations, the Department of Labor makes numerous statements expressing its belief that there are unscrupulous employers who are manipulating the current system. Therefore, the proposed regulations contain an increased emphasis on enforcement of the labor certification program through audits on selective cases and severe penalties for applicants who fail to comply with the requirements. For example, if the Department of Labor requests the employer to submit documentation to substantiate its statements in the application and the employer fails to respond within 21 days, the Department of Labor will view the failure to respond as a "material misrepresentation" on the application. This is intended to "dissuade those small number of employers that conceivably may file applications without complying with all the documentation requirements". In addition, if the Certifying Officer determines that an employer materially misrepresents information on an application, it will place the employer on a two-year probation by restricting the employer from using the pre-filing recruitment and require the employer to use the supervised recruitment method. Furthermore, the proposed regulations provide Certifying Officers with authority to revoke labor certifications within one year of the date the labor certification is granted or before a visa number is available, whichever occurs first. Interestingly, the regulations do not describe the circumstances under which the Certifying Officers can revoke the application.

Under the PERM program, the labor certification process would involve the following procedure: First, the employer will file a PWDR, Prevailing Wage Determination Form-ETA Form 9088, with the State Workforce Agency to obtain the prevailing wage for the position. The form would include the job description, job duties and job requirements. Second, the employer will conduct extensive recruitment for the position, using standards which are stricter than the current recruitment procedures under either the basic labor certification process or the reduction in recruitment process. Third, the employer will complete the Application for Permanent Labor Certification -ETA Form 9089 which consists of 56 questions designed to elicit information regarding the employer's recruitment efforts. Fourth, the employer will file the Prevailing Wage Determination Form and the Application for Permanent Labor Certification with the Certifying Officer of the Department of Labor for automated processing. Fifth, the Department of Labor, through the automated processing, will either approve the case in approximately 21 days or request the employer to submit proof of the recruitment if the case is selected for audit. The Department of Labor may select a case for audit based upon information on the application; however, the Department of Labor will also select cases for audit on a random basis. The Department of Labor anticipates that approximately 20% of the cases filed will be selected for audit. After the certifying officer reviews the application pursuant to an audit, it can do one of three things: certify the application, deny the application, or order supervised recruitment. If the Department of Labor orders supervised recruitment the employer will have to conduct further recruitment, similar to the current non-RIR recruitment scheme which consists of an advertisement along with a 30-day job order and a recruitment summary, despite the fact that the employer previously conducted significant recruitment before filing the application. The supervised recruitment under the PERM program will differ from the current recruitment in the basic labor certification case only in that the regional departments of labor rather than the state agencies will supervise the recruitment.

The PERM program would allow the Department of Labor to process applications more quickly and reduce the current backlog. Specifically, the combination of automated processing system for the applications and elimination of state employment security agencies role in the labor certification process would enable the Department of Labor to process an application within 21 days, in cases where the Department of Labor does not order supervised recruitment.

Although applications can be processed more quickly under the PERM program, the strict standards of the program may significantly reduce the number of applications that may ultimately be approved. Companies who employ foreign nationals should be aware of the following significant changes that could take effect if the PERM program is implemented according to the proposed regulations.
 

Expansion of the recruitment procedures: Prior to filing an application, employers will have to conduct recruitment at least 30 days but no more than 180 days before the filing.  The recruitment must consist of mandatory recruitment methods including a job order with the SESA, two advertisements that identify the employer and include a job description; such advertisements must be placed at least 28 days apart in the Sunday newspaper except that one of the advertisements can be placed in an appropriate journal in lieu of the Sunday advertisement if the position requires experience and an advanced degree. In addition to the SESA job order and the two advertisements, the employer must post the internal posting in all in-house media throughout the company and conduct three alternate recruitment steps from professional recruitment channels such as job fairs, job search web sites and private employment agencies. 

 

Discretionary authority to order supervised recruitment: The Department of Labor can order the employer to undergo supervised recruitment, even after the employer produces significant pre-filing recruitment.  The supervised recruitment is similar to the current recruitment procedures under the basic labor certification process except that it is supervised by the Department of Labor rather than a SESA.  The proposed regulations give the Department of Labor authority to order supervised recruitment in certain circumstances including cases of layoffs, however, the regulations do not clarify all the circumstances that may trigger supervised recruitment

 

Restriction on Job Requirements: The proposed regulations restrict the job requirements in several ways.  First, if the job requires a "combination of duties" (i.e. the job involves duties from two occupations) the employer would not be able to include requirements for both positions unless the company employed a U.S. worker in that position within two years of filing the labor certification.  Second, if the job requires skills that are not typical for the job, the employer will not be able to include the requirements even if it is a "business necessity" in the context of the employers business.  Third, an employer would not be able to include alternate requirements for the job.  For example, a company who files an application for a software engineer will not be able to state alternate requirements such as experience as a consultant, programmer analyst, systems analyst nor will the company be allowed to accept the alternate requirement of a degree or equivalent years of experience.                            

 

Restriction on applicants' qualifications for the job: The PERM Regulations narrows the permissible experience of the foreign national and, at the same time, broadens the qualifications of the U.S. workers.  The regulations do not allow the foreign national to qualify for the job based upon any experience gained with the current employer.  This change would significantly limit the ability of employers to obtain labor certification for its L-1b employees. Under the current labor certification program, a foreign national can use experience with the same employer if either the experience was gained in a different position with the company or if it is no longer feasible for the company to train for the position.  The PERM Regulations do not allow the foreign national's experience with the same employer to count under any circumstances. At the same time, the PERM regulations prohibit an employer from disqualifying a U.S. worker from the job if the U.S. worker simply fails to meet one of the requirements of if the U.S. worker can be trained on the job in a reasonable amount of time.

 

Increase in the wage obligation:  The current regulations allow the employer to pay the foreign national a wage that is within 95% of the prevailing wage.  However, the PERM regulations eliminate the 5% variance, thereby requiring the employer to pay 100% of the prevailing wage. 

 

Severe amendments to the H-1b Program:  The PERM Regulations make two significant amendments to the H-1b program.  First, the Regulations require the employer to pay 100% of the prevailing wage rather than 95% of the prevailing wage. Second, the Regulations require the employer to increase the wage during the three-year H-1b petition as the H-1b worker moves from an inexperienced employee to an experienced employee and the increase must be consistent with the experience levels in the wage survey filed with the H-1b petition.

                                   

The Department of Labor provided, as required under the Administrative Procedures Act, a 60-day period for interested parties to submit comments to the regulations. As an active player in legislative issues that affect immigration, Hammond & Associates, LLC will be sending an extensive opinion to the Department of Labor outlining the flaws in the proposed system. We predict that the Department of Labor will change several provisions in the Regulations before it issues the Final Regulations. The Department of Labor has admitted that it may take as long as one year before it finalizes the regulations and implements the PERM program.
 

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