"PERM"-A New Labor Certification

Good Bye Old World Labor Certification. Hello “PERM!”

After literally years of expectation, PERM (Program Electronic Review
Management) may finally make its debut around October 2004. The new program is expected to revamp the labor certification process by creating a more efficient system for certifying the unavailability of able, willing and qualified U.S. workers for a job that is offered to a foreign national.

Although we do not yet know the specifics, since publication of the Final
Rule is not expected until June 7 or shortly thereafter, the expectation is
that PERM will eliminate the traditional labor certification process and
create a process that is to some extent based on current Reduction in
Recruitment (RIR) procedures. Under PERM employers will be expected to obtain a prevailing wage determination from the state workforce agency (SWA), place a job order with the agency and conduct a recruitment campaign utilizing print, electronic and other recruiting methods. PERM does not change the prevailing wage requirement and retains the requirement for posting a notice of filing an application for labor certification. PERM adds a requirement that employers attest to the unavailability of qualified U.S. workers.

Other than for determining prevailing wages and receiving job orders, PERM effectively eliminates the role of state workforce agencies in the labor certification process. Filing will be done electronically and directly with a regional office of the Federal Department of Labor. Applications will be entered into a computer system that checks for completeness and “flags” cases that need additional review and/or a supervised recruitment. For quality assurance purposes, PERM is expected to have a random audit feature, since documentation relevant to the recruitment may not have to be submitted with the initial filing.

The proposed PERM rule published last year had some serious drawbacks to the process, including the elimination of alternative experience, special job requirements and the business necessity rule, and the implementation of a post-certification revocation rule. Whether these and other negative aspects of the proposed PERM rule survive in the final rule or whether other restrictions are added is still up in the air. While we do not yet know the particulars of PERM, what we do know is that the labor certification process is entering a Brave New World.