PERM Update

01/03/05

At long last, the PERM (Program Electronic Review Management) final rule was published in the Federal Register on December 27, 2004. While we are still digesting the 300-page document and will not know exactly how the new system will work until after it is implemented on March 28, 2005, we can provide some highlights of the new rule.

Filing

Under PERM, it will be possible to file labor certification applications electronically using a special website or by mail to the National Processing Center (NPC) in Chicago or Atlanta, using new application form ETA 9089. For electronically filed applications the employer will sign the certified form upon receipt from the DOL. The originally signed form must be submitted with the I-140 immigrant visa petition. Applications filed by mail must bear the original signature. A priority date will be assigned as of the date of receipt, provided that the form is accepted for filing. The Department of Labor (DOL) expects to adjudicate electronically filed applications within 45 to 60 days of filing.

Recruitment

PERM recruitment is similar to current RIR procedures to the extent that recruitment occurs prior to filing. Unlike RIR, however, PERM requires a series of recruitment steps that must occur within a set timetable. Further, the expanse of the required recruitment is affected by the nature of the job. Professional jobs, defined as those for which a bachelor's or higher degree is necessary for job performance, require additional recruitment from a list of ten additional recruitment steps identified by the DOL.

Print-media advertisements remain a requirement for PERM processing. Employers must place two Sunday advertisements in newspapers of general circulation in the area of intended employment, or in a professional journal in lieu of one of the Sunday ads where occupationally appropriate. Ads must identify the employer and the geographic area of the job and provide enough information about the vacant position to inform U.S. workers of the job opportunity. Ads need not list the wage offer or provide a detailed description of the job or job requirements.

In addition to advertisements, employers are also expected to use normal in-house recruiting procedures, whether in print or electronic form, and PERM pre-filing recruitment requires the continued use of the traditional internally posted job notice. PERM also requires that employers place a thirty-day job order with the state workforce agency (SWA)

Prevailing Wages

Prevailing wage determination under PERM is identical to the prevailing wage changes articulated for H-1B visa applications in the Consolidated Appropriations Act of 2005 that was signed into law on December 8, 2004. The previously permitted 5% variance is eliminated and the wage offered must be equal to or greater than the prevailing wage.

For prevailing wage determination purposes, the Occupational Employment Statistics (OES) has been expanded from two to four levels using a mathematical formula established for this purpose. Use of McNamara-O'Hara Service Contract Act or Davis Bacon Act wages remain an option if applicable to the job, as is the use of alternate surveys. Discretionary bonuses, commissions and/or cost-of-living allowances may be included in determining the wage-offer, but only if such payments are guaranteed by the employer. PERM also continues to uphold the current regulation regarding the effective date for payment of the prevailing wage, as the date that the U.S. Citizenship & Immigration Service (USCIS) grants permanent residency or the date that the foreign national employee is admitted to the U.S. to take up the certified job.

Recruitment Report

Similar to RIR processing PERM processing requires employers to prepare a recruitment report summarizing the nature and result of the recruitment. The DOL does not require employers to identify individual U.S. applicants in the Report, but does require employers to include specific information about rejected U.S. workers categorized by the lawful, job-related reasons for disqualification.

PERM rules deem workers who lack a particular skill for job performance as "qualified," if such workers can acquire the skill in a "reasonable period" of on-the-job training. The final rule, however, eliminates the current requirement that employers consider U.S. workers' experience, training and/or education as the equivalent of a required academic degree.

PERM also retains to lesser or greater extent the use of the Business Necessity standard to justify special requirements, alternative experience requirements and experience gained on-the-job. Minimum requirements are measured by the specific vocational preparation (SVP) code assigned to the occupation as shown in the O*Net job zones.

Employers must retain documents used in support of the Report for five years from the date of filing.

Converting Pending Cases

Conversion of pending labor certification cases without loss of the priority date is available to the extent that an existing case may be withdrawn, if the SWA has not already placed a job order, and re-filed under PERM rules (including new recruitment, ads, job order, etc) within 210 days of the request to withdraw. The re-filed application, however, must be for what the DOL determines is an "identical job opportunity." The final rule defines "identical job opportunity" as the same employer, foreign national employee, job title, job location, job description and minimum requirements, including any changes that may have been made in response to a SWA assessment notice issued prior to the PERM effective date of March 28, 2005.

To what extent, if any, data on a pending application may be amended while still meeting the "identical" requirement, remains to be seen. In addition to the drawback of costs associated with a new recruitment, the danger in converting a pending case is the potential loss of the priority date. If the DOL deems that the job opportunity is not identical, then the application is not successfully re-filed and will be treated as a new application with a new priority date. Now that the quota for third preference employment-based immigration cases is closed for nationals of China, India and the Philippines, the issue of retaining an early priority date for these foreign nationals is an important consideration. Retaining an early priority date is an equally important consideration where there may be a need to extend an H-1B visa beyond the six-year limit.

Pending applications not withdrawn after March 28, 2005 will be processed under current labor certification rules in Backlog Reduction Centers (BRC) and, until the implementation date, at the DOL regional offices or NPCs. The BRCs have now started to issue Center Receipt Notification Letters, so we are beginning to see movement on pending cases that have been transferred to either the Dallas or Philadelphia BRC. The processing dates for current cases will continue to be posted on the DOL website.

Audit Component

The DOL may audit labor certification applications. Audits may be done for cause or randomly for quality control purposes. Where an application is selected for audit, the Certifying Officer (CO) of the relevant NPC will issue a letter specifying additional documentation that must be submitted. PERM provides a thirty-day response time, with the opportunity of one thirty-day extension. The DOL will deny the application if response is not timely received. No administrative or judicial recourse is available.

Upon receipt of the requested documentation, the CO may at his/her discretion require the employer to conduct a supervised recruitment. Where an employer fails to respond to a request for additional documentation the CO may require that employer to conduct supervised recruitment for future labor certification applications for a period of two years.

Adjudication

The National Certifying Officer (NCO) and the NPC COs have the authority to approve or deny labor certification applications. The standard for approval remains essentially the same as under current rules, i.e. whether or not the employer has demonstrated the unavailability of qualified, able and willing U.S. workers for a specific job at a stated location and whether employing the foreign national will adversely affect the wages or working conditions of U.S. workers similarly employed.

The employer will be notified of the determination either electronically or by mail. If certification is granted, the CO sends the certified application and the Final Determination letter to the employer, or the designated agent. If labor certification is denied, the employer may request a review by the Board of Alien Labor Certification Appeals (BALCA) within thirty days of the date of the determination. If the employer does not request a review, a new application may be filed at any time, but if review is requested a new application for the same job on behalf of the same foreign national employee may not be filed until the review process is completed.

Although the DOL may certify an application, it may still be invalidated by the Department of Homeland Security (DHS), the Department of State (DOS), or by a court on grounds of fraud or willful misrepresentation of a material fact involving the labor certification application. Where fraud or willful misrepresentation is discovered prior to approval, the CO will refer the matter to DHS for investigation and provide a copy to the DOL Office of Inspector General. If no criminal indictment or information is initiated within ninety days, the CO may continue to process the application.

The CO, in consultation with the NCO may also revoke an approved application if subsequent to approval certification is deemed unjustifiable. The employer, however, must receive notice of the intent to revoke specifying the grounds for revocation and be given an opportunity to rebut.

Conclusion

These are some of the highlights of PERM processing. All in all, the final rule is not as harsh as the proposed rule was and if processing times will be as fast as projected by the DOL, then PERM certainly will be welcome. We are, however, still early in the process for a definitive assessment of the PERM program. Questions will come up, as will the need for DOL interpretation and term definition, as we get more familiar with the program.

In the meantime, our office is moving forward with PERM rule recruitment in preparation for filing cases as of March 28, 2005. We are also completing RIR cases that are in progress at this time, which cases will be filed under current rule.