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Immigration Daily December 29, 2004
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Essence Of PERM

Perhaps we are sticking out our necks too early, but here goes: the essence of the PERM rule can be understood with this somewhat over-simplified equation:
PERM = No SWAs + Recruitment attestation
The two issues above (elimination of the SWAs and attested recruitment instead of supervised recruitment) capture the main changes that attorneys might notice under the new PERM regime as compared to the old, familiar labor cert system that attorneys have gotten accustomed to. In other words, for many attorneys (after the initial period of learning the new ropes) PERM may come to look like a more onerous and nationalized RIR system.

This is hardly to say that there is not much new in PERM. Learned minds across the country are trying to fathom what the PERM rule has wrought, and surprises are already apparent, some welcome, some horrifying. On the good news front, for those who process Physical Therapist cases, the PERM rule simplifies things by requiring only evidence from a state board that the alien is eligible to take the NPTE (rather than having passed the NPTE). On the bad news front, the new 20 CFR 656.32(a) puts it plainly: "The Certifying Officer ... may ... revoke an approved labor certification, if he/she finds the certification was not justified." It is hard to imagine a surer way of removing any certainty from the system.

[Editor's Note: corrected 01/03/05]

All those interested in preparing for PERM are well-advised to read "The Lawyer's Guide To 212(a)(5)(A): Labor Certification From 1952 To PERM" by Gary Endelman. Readers may also want to check out our latest PERM seminar and THE PERM BOOK (both pages are updated regularly with new info as it arrives).

We welcome readers to share their opinion and ideas with us by writing to



ILW.COM is proud to present THE PERM BOOK - "Labor Certification by Joel Stewart". This book will include a lengthy and detailed section-by-section analysis of the entire PERM rule (including changes caused by the Consolidated Appropriations Act, 2005) by Joel Stewart. Books will be shipped out according to the principle first-ordered, first-shipped. For more info and to order pre-publication copies, see here.


Where Did We Leave Things In The 108th Congress?
Maurice Belanger of The National Immigration Forum provides an overview of immigration matters in Congress over the last two years, and a look ahead at the 109th Congress which will convene next week.

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USCIS Guide for US Businesses Hiring Temporary Employees from Outside the US
The Office of Business Liaison of the USCIS released Employer Information Bulletin 2 providing basic information about for U.S. Businesses Hiring Temporary Employees from Outside the U.S.

DOJ Immigration Litigation Bulletin: June 2004
The Department of Justice Office of Immigration Litigation released the June 2004 issue of its publication, Immigration Litigation Bulletin (thanks to Dan Kowalski of Bender's Immigration Bulletin for helping to make OIL bulletins available online).

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Vorys, Sater, Seymour and Pease LLP, based in Columbus, Ohio, seeks a paralegal with 2+ years experience in employment-based non-immigrant and immigrant categories, including labor certs. Opportunity to play a key role in supporting a mature and expanding practice. Bachelor's degree and ABA certificate preferred. Must be detail-oriented with excellent writing, organizational and computer skills. Good benefits. Salary commensurate with experience. Send resume by mail to: Donna Prehm, Vorys, Sater, Seymour and Pease LLP, PO Box 1008, Columbus, Ohio 43216, by fax: 614-719-4913, or by email:

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Readers are welcome to share their comments, email: (300-words or fewer preferred).

Dear Editor:
In the final PERM rule, there is no time limit on the ability of a Certifying Officer to revoke a labor certification, virtually for any reason. While the preliminary comments on page 77365 state that there is no need for the CO to consult with the National Certifying Officer, the regulation at Section 656.32(a) says otherwise. Which is DOL's position? The regulation says that revocation an happen if the CO finds " the certification was not justified." Absolutely no criteria are given for making this determination. This is an unlimited right of the CO to invalidate a labor certification where there is no allegation or proof of fraud. Indeed, if the CO changes his or her mind for any reason, it would seem that the labor certification may be nullified. What about the fact that the employer has relied on the labor certification and thereby gained a property interest in its validity? [Editor's Note: corrected 01/03/05] While the DOL is understandably concerned about fraud, this is not the right or proper way to go about ensuring that it does not take place.

Gary Endelman

Dear Editor:
I had a chance to read final Regualtion. Here is my simple doubt. It is not clearly mentioned anywhere that if the perior recruitment effort comply with PERM regulation, a fresh recruitment 6 months perior to refiling under PERM is not necessory. The page 256 in final PERM rule says "to keep original filing date, refiling is allowed for the identical job opportunity if it comply with filing and recruiting requirements under part 656" Now my doubts are, If the some of the perior recruitment efforts performed year ago for pending (RIR style) applications are totally comply with PERM regulations (Content and pattern of advertisements), is it necessory to repeat the same recruitment effort again inorder to refile? or Is it enough to have a "missing" recruitments? If some employer do not mind in losing the Peiority Date, Is it posiible to file a fresh LC through PERM without withdrawing the pending LC (to be in safe side with new system)?



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Publisher:  Sam Udani    Legal Editor:  Michele Kim

Editorial Advisory Board:   Marc Ellis, Gary Endelman

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