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PERM: New Rules for Immigrating through Employmentby Carl Shusterman
On December 27, the U.S. Department of Labor (DOL) will publish regulations
in the Federal Register which will introduce a new expedited form of alien
labor certification entitled PERM. PERM is the "Program Electronic Review
Management" system. On December 23, we obtained an advance copy of the
regulations which we posted on our web site at
http://shusterman.com/toc-dol.html#3A
These regulations will become effective on March 28, 2005. In the meantime,
employers may continue to submit regular and RIR labor certifications. If
an employer with a pending labor certification wishes to submit a labor
certification for this same job under PERM, it must first withdraw its regular
or RIR labor certification, and resubmit the application under PERM.
What if you are an employer who has filed one or more of the 300,000+
applications for labor certification which are currently pending? Can these
pending applications be changed to PERM without losing their priority dates?
Yes, if you do so within 210 days after withdrawing your labor certification
application, and you meet the following three conditions: (1) no job order has
been placed with the SWA; (2) the job offer is identical; and (3) you meet all
PERM-related recruitment and advertising requirements.
PERM will allow employers to submit an Application for Permanent Employment
Certification (ETA-9089) directly with DOL, online if they wish, and receive
an approval within 45 to 60 days if there is no DOL audit.
The ETA-9089 is essentially an attestation which requires the employer to check
"Yes" or "No" to a series of questions, and to describe the job and specific
skills or other requirements. The PERM page on the DOL web site will include
detailed instructions to assist employers in completing the form. Employers
will be able to enter the PERM web page by using a password. The online system
will remember the employer's information (e.g., name, address, etc.) so that on
future applications, this information will be entered automatically, and the
employer will only have to enter information specific to a particular
application.
The employer need not submit any supporting documentation with the form, but
must maintain and supply such documentation if required by the Certifying
Officer. The standards for reviewing such applications remain the same as
under the current labor certification process: (1) Has the employer met the
procedural requirements of the regulations?; (2) Are there insufficient U.S.
workers who are able, willing, qualified and available?; and (3) Will the
employment of the alien have an adverse effect on the wages and working
conditions of U.S. workers similarly employed?
DOL will audit certain PERM applications according to criteria developed to
identify problematic applications. As a quality control measure, DOL will
also conduct random audits.
Once DOL certifies an ETA-9089 and returns it to the employer, the employer
must immediately sign the application and submit it in support of an
immigration visa petition (I-140) to the DHS.
The State Workforce Agencies (SWAs) will largely be removed from the process
although employers must still obtain a Prevailing Wage Determination (PWD) from
the SWA before submitting form ETA-9089 to DOL. Employers will be required to
pay 100% rather than 95% of the prevailing wage. In addition, the government
will offer a four-level wage system in place of the current two-level system.
As is presently the case with RIR labor certifications, PERM will require
employers to recruit for the job BEFORE filing their applications. They must
place a job order with the SWA and run two Sunday newspaper advertisements.
If the application is for a professional occupation, the employer must conduct
three additional steps from a list found in the regulation.
There is no processing fee, and this regulation does not specify what the
penalties will be for failure to comply with PERM. Penalties will be
enumerated in a subsequent regulation. If DOL denies a labor certification,
the employer may appeal the denial to BALCA. DOL may, instead of denying an
application, order supervised recruitment for the job opportunity.
Ironically, the biggest advantage of PERM, which is speed in processing, comes
too late to help employers obtain permanent residence for most Chinese, Indian
and Filipino workers in an expedited fashion since the EB-3 category for
persons born in these countries will regress three years starting on
January 1, 2005. However, for workers born in other countries, and for EB-2
employees, PERM holds great promise.
It remains to be seen what effect PERM will have on the Visa Bulletin and on
green card processing. It is possible that the ease with which an application
for labor certification may be filed under PERM may result in DOL and CIS being
inundated with a huge volume of new cases. This, however, is the subject for
a future newsletter.
The regulations are voluminous, 322 pages in all. To simplify the process of
locating specific portions of the regulations, below are the major subject
headings and pages on which they appear in the December 23 version:
Page Subject Heading
2 SUPPLEMENTARY INFORMATION
I. Introduction
II. Statutory Standard
3 III. Current DOL Regulations
4 IV. Overview of Regulations
13 V. Discussion of Comments on Proposed Rule
A. Fraud, Program Abuse, and Non-Meritorious Applications
14 1. Concerns about Fraud, Program
Abuse and Non-Meritorious Applications
16 2. Proposals for a Two-Tier System
20 B. Role of State Workforce Agencies
1.Loss of SWA Expertise
22 2. Job Bank Orders
23 C. Definitions, for Purposes of this Part, of
Terms Used in this Part
1. Definition of the Area of Intended Employment
26 2. Definition of the Employer and Employment
27 3. References to the INS
4. Definition of the SVP and Educational Equivalents
29 5. Definition of the SESA
30 D. Electronic Filing of Applications
1. Electronic Filing
32 2. Elimination of PWD Form
33 3. Multiple Beneficiaries
4. Assistance in Completing the Application Form
5. Recommended Changes to the Application Form
35 E. Schedule A
1. Nurses
40 2. Performing Artists
3. Expansion of Schedule A
44 4. PWD Requirement
46 5. Technical Correction
F. Elimination of Schedule B
47 G. General Instructions
1. Financial Involvement
2. Representation
a. Attorneys and Agents
48 b. Form G-28
49 c. Retention of Documents by Attorney
50 3. Attestations
51 4. Notice
a. Expansion of Notice Requirement
54 b. Notice for Schedule A Applications
55 c. Wage Range and Inclusion of Wage in Notice
56 5. Timing and Duration of Notice
57 a. When the Notice Must Be Provided
b. Duration of the Notice
58 6. Notice to Certified Collective Bargaining
Representative
60 7. Inclusion of Posting Requirements in
Recruitment Advertisement
61 8. Retention of Documents
62 H. Fees
63 I. Labor Certification Applications for Sch.
A. Occupations
1. Filing Requirements
2. Documentation Requirements for Nurses
64 3. Documentation Requirements for Aliens of
Exceptional Ability
J. Labor Certification Requirements for Sheepherders
K. Basic Process
1. Filing Applications
66 2. Processing
3. Filing Date and Refiling of Pending Cases
to New System
a. Filing Date
67 (1) Possible Reinstatement of Section 245(i)
68 (2) PWD Requirement
69 b. Refiling of Pending Cases in New System
(1) Identical Job Opportunity
70 (2) Withdrawing and Refiling Cases
72 (3) Test of the Labor Market
73 (4) Transition to the New System
74 (5) Priority in Processing Applications
76 4. Pre-Filing Recruitment Requirements
77 a. Job Order and Two Print Advertisements
(1) Job Order
78 (2) Newspaper Advertisements
82 (3) Professional Journals
83 b. Additional Recruitment Steps for
Professional Occupations
86 c. Recruitment for Occupations in Appendix A
to the Preamble
(1) Definition of professional and
nonprofessional occupations
88 (2) Presumptions and Preferences
91 (3) Recruiting Advertising Requirements
92 5. Required Advertisement Contents
a. Level of Specificity
95 b. Advertisement Cost
96 c. Wage Offer in the Advertisement
98 d. Employer's Name in the Advertisement
99 e. Placement of Advertisement in Newspaper
100 f. Inclusion of Physical Address in the Advertisement
g. Inclusion of Posting Requirements in One Advertisement
101 6. Recruitment Report
a. Concerns About Preparing Recruitment Report
106 b. Job Qualification Through Reasonable Period
of On-the-Job Training
109 7. Job Requirements
a. Business Necessity Standard and Job Duties
112 b. Foreign Language Requirement
114 c. Combination Occupations
115 8. Alternative Experience Requirements
119 9. Actual Minimum Requirements
121 a. Dissimilar Jobs
122 b. Infeasibility to Train
c. Definition of Employer
124 10. Layoffs by the Employer
a. Industry and Statewide Layoffs
125 b. Knowledge of Layoffs
c. Laid-off U.S. Workers
126 d. Contract Workers
127 e. Definition of Related Occupations
129 f. Definition of Layoff
11. Alien Influence and Control over the Job
a. Number of Employees
130 b. Familial Relationship Between Alien and Employer
131 c. Ability to Pay the Salary for the Position
132 12. Multiple-Beneficiary and National Applications
a. Multiple-Beneficiary Applications
133 b. National Applications
134 I. Optional Special Recruitment and
Documentation Procedures for College and
University Teachers
135 1. Expansion of the Optional Recruitment
Procedures to Include Additional Occupations
a. Inclusion of High-Level Positions
b. Inclusion of Primary and Secondary School Teachers
139 M. Live-in Household Domestic Service Workers
1. Modifications to the Proposed Rule
140 2. Oversight and Audit of Domestic Service
Worker Applications
3. One (1) Year Experience Requirement
141 N. Audit Letters
142 1. Elimination of NOFs and Contents of the Audit Letter
144 2. Criteria for Audits
146 3. Sending and Responding to the Audit Letter
148 4. Extensions
5. Penalties for Failure to Respond Timely to
the Audit Letter
150 O. Supervised Recruitment
151 1. Criteria for Requiring Supervised Recruitment
152 2. Resources of the Certifying Officer
153 3. Knowledge of the Certifying Officer
154 4. Supervised Recruitment Process
156 5. Technical Correction
P. Labor Certification Determinations
1. Referral of Applications to the Division of
Foreign Labor Certification
157 2. Comments on Determination Process
a. Able and Qualified U.S. Workers
b. Time to File Requests for Review and Reconsideration
158 c. Submittal of New Information in
Reconsideration Requests
d. Material Misrepresentation
160 Q. BALCA Review, Consideration and Decision Process
1. Technical Changes
2. Comments on Proposed Rule
a. Elimination of Records
162 b. Time Allowed to File Request for Review
163 c. Only Employer Can Request Review
d. Debarment of Employers
R. Validity of and Invalidation of Labor
Certification: Substitution of Alien Beneficiaries
and Issuance of Duplicate Labor Certifications
1. Substitution of Alien Beneficiaries
165 2. Issuance of Duplicate Labor Certifications
S. Labor Certification Applications Involving
Fraud or Willful Misrepresentation
167 T. Revocation of Approved Labor Certifications
168 1. Criteria for Revoking Labor Certifications
169 2. Time Limit for Revocation
3. Consultation with National Certifying Officer
170 U. Prevailing Wages
1. Application Process
171 2. PWD Response Time
172 3. Validity Period of PWD
173 4 Collective Bargaining Agreement, Davis-Bacon
Act, and Service Contract Act
176 5. Elimination of 5 Percent Variance
178 6. Skill Levels in PWDs
a. Number of Skill Levels
179 b. Inconsistency among SWAs in Assigning Skill Levels
c. Academic Institutions
180 7. Employer-Provided Wage Data
186 8. Use of Median
9. Definition of Similarly Employed
188 10. Transition of H-1B Workers from
Inexperienced to Experienced
194 11. Submission of Supplemental Information
196 12. Prevailing Wages for Certain Academic,
Nonprofit and Research Entities
198 13. Role of the SWA in the PW Process
199 14. Occupational Wage Library
15. Technical Correction
200 16. Miscellaneous Matters
202 V. CO Review of PWDs
The complete text of the final rule begins on page 219.
The new PERM system promises to be challenging for both employers and attorneys
as well as for the government. The learning curve will be enormous. In
addition, some employers will, no doubt, be tempted to cut corners and not
fully comply with the new rules hoping that they will not be audited by DOL.
Having been intimately involved in the attestation process for health care
providers in the 1990s, I can assure them that if they are audited, DOL will
fully investigate them. If their applications contain willful and materials
misrepresentations, DOL will impose substantial fines and perhaps debar them
from further participation in the PERM program.
The PERM regulations stipulate that DOL will answer your e-mail questions about
the new system and establish an online FAQ. Address your questions to
PERM.DFLC@dol.gov.
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