News Release from Jewell & Associates - June 10, 2004
We reported last year on PERM (Program Electronic Review Management), a proposed federal regulation that would replace the current Department of Labor (DOL) labor certification regulations that govern the way employers sponsor employees for U.S. permanent residence (a “green card”). The PERM proposal would replace current DOL regulations, with an automated processing system. DOL published the proposed PERM rule in the Federal Register on May 6, 2002 and accepted comments until July 5, 2002. DOL sent a final rule to the federal Office of Management and Budget (OMB) on February 23, 2004 for review that was expected to take 90 days, i.e., until late May 2004. Although a final rule has not yet been published, DOL has begun recruiting for PERM-related government positions and has solicited bids for the technology that must be in place to process PERM applications. For these reasons, we believe a final rule is imminent. DOL has stated that there will be a 120-day period between the publication of a final rule and its effective date. Therefore, if (hypothetically) a final rule were published in June 2004, labor certification applications filed under PERM could be filed as early as October 2004.
Summary of the existing system: “Slow track” and “fast track” labor certification applications (valid to approximately late 2004, when PERM is expected to replace current processes)
Permanent residence (the “green card”) based on employment normally requires a recruitment exercise to establish the unavailability of qualified U.S. workers. Exceptions exist for multinational executives/managers, outstanding professors and researchers, and individuals of extraordinary ability.
Currently, and until approximately late 2004 when the U.S. Department of Labor (DOL) is expected to implement its PERM program, the federal regulations provide two ways to apply for a labor certification, i.e., certification by DOL that the employer has recruited and has not found qualified, available U.S. workers:
- Fast track / reduction-in-recruitment / RIR method: The employer advertises in print media and other media over the course of several months, then files the application with a request that government-supervised recruitment be waived. A final decision from DOL currently takes about two years from the time of filing, though some regional variations in timing exist.
- Slow track / non-reduction-in-recruitment / non-RIR method: The employer files a “bare bones” application with no evidence of recruitment, and states that it will comply with government-supervised recruitment. The government-supervised recruitment will take place at least a year later (though some regional variations in timing exist), and will consist of a three-day newspaper ad or a single ad in a professional journal, plus internal posting. Provided that the recruitment yields no qualified, available U.S. workers, a labor certification should be issued, but such approval may be four or more years from the time of filing (again, regional variations exist).
Summary of the proposed PERM system (expected to replace the current labor certification system in late 2004)
The summary below is based on the proposed PERM rule. The final rule on PERM may be different from the proposed rule.
The biggest changes embodied in the PERM proposal are:
- The employer will lose some flexibility in describing job requirements and evaluating applicants: Generally speaking, job requirements must be stated in terms of degree and experience only. Listing of alternate ways of satisfying requirements will not be permitted. Requiring special skills, beyond the degree and experience requirements, will not be allowed unless the skills are “normal” to the occupation and the employer has recently employed a U.S. worker with the same skills in the same occupation. Any extra requirements may not be allowed, though it is expected that DOL in its final PERM rule will provide for employer’s to justify such requirements based on business necessity. U.S. workers who do not meet the requirements but who could be trained in a “reasonable period of on-the-job training” must be considered qualified.
- The employer will always recruit in advance of filing: The proposed regulation sets forth the types of recruitment that must be done, depending on the type of position. For most professional jobs, the recruitment will involve a combination of print advertising, three additional forms of recruitment (e.g., Internet site, on-campus recruiting, job fairs, headhunters) and, if the employer has had lay-offs in the preceding six months, notification to laid-off workers.
- The employer will not submit recruitment documentation with the application: The application will consist principally of a DOL form on which the employer attests to having complied with all of the recruitment requirements and to not having located a qualified, available, U.S. worker.
- The application will be processed electronically by an automated system and may result in a labor certification in as few as 21 days: Unless an application is flagged for an audit, the processing will be entirely electronic, without human intervention. The automated system will read the application forms and will detect responses that would flag a case for an audit. In addition, any case may be subject to random auditing. If a filing is not flagged for an audit, the labor certification may be granted in as few as 21 days.
- DOL may audit the employer’s recruitment documentation before rendering a decision on the application: If a case is flagged for an audit, the employer will be given 21 days within which to produce documentation that its attestations regarding the recruitment were truthful. Depending on what the employer provides, DOL will approve the labor certification, deny the labor certification, or order government-supervised recruitment.
- Labor certifications may be revoked for cause within a year of issuance: Even after a labor certification is issued, the proposed regulation would allow DOL to revoke its approval within a year, provided the employee has not yet obtained permanent residence in the U.S. or received a U.S. immigrant visa from a consulate abroad. The proposed rule is not specific about what would be just cause for such a revocation.
The following is a summary of the procedural steps that most successful labor certification cases will follow if the PERM proposal is adopted as-is:
- Step 1: Submit prevailing wage request (Form ETA 9088) to the State Workforce Agency and obtain a prevailing wage determination.
- Step 2: Post internal notice of labor certification via all in-house media, including electronic media.
- Step 3: Undertake recruitment program consisting of: (a) placing a job order with the State Workforce Agency; (b) print advertising, e.g., depending on the occupation, two Sunday newspaper ads or one national journal ad; (c) three additional forms of recruitment from among a list of acceptable forms (the list includes Internet job sites, the employer’s own web site, on-campus recruiting, job fairs, and headhunters); and (d) notice to potentially qualified workers whom the employer laid off in the preceding six months.
- Step 4: Submit to DOL the labor certification application (Form ETA 9089), on which the employer has checked responses attesting to its recruitment efforts.
- Step 5: Either automatically, or after a DOL audit, receive approved labor certification and proceed with the rest of the employee’s immigration process (I-140 immigrant petition; then, final application for permanent residence through I-485 adjustment-of-status or through consular processing).
© Jewell & Associates 2004