  |
 |
|
The Proposed "PERM" Labor Certification Program
Business Immigration Quarterly, Summer 2002
Sherry L. Neal
The Department of Labor recently issued regulations which revamp the labor
certification process and to amend some features of the H-1(b) 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 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 the Department’s 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 an
employer filing an approved Prevailing Wage Determination Form (a new form)
and an Application for Permanent Labor Certification (a new revised form
with 56 questions) The Department of Labor, through an automated processing
system, will either approve the case in approximately 21 days or request the
employer to submit proof regarding the information on the application. If
the Department of Labor requests additional information it will review the
documentation and either certify the application, deny the application, or
order supervised recruitment, similar to the current non-RIR recruitment
scheme.
The processing time under the PERM will be much quicker, approximately 21
days, than current processing times because of the combination of automated
processing of the applications and elimination of state employment security
agencies role in the labor certification process.
Although applications can be processed more quickly under the PERM program,
the strict standards of the program will significantly reduce the number of
applications that will be approved. Thus, companies who employ foreign
nationals should be aware of the following 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. 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-1(b) Program: The PERM Regulations make two
significant amendments to the H-1(b) 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-1(b) petition as the H-1(b) 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-1(b) 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 sent 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.
Sherry L. Neal, Esq.
|
|
|
