PERM

The Department of  Labor (DOL) published the long-awaited Program Electronic Review Management (PERM) regulations on December 27, 2004.  These new regulations became effective  on March 28, 2005.   In addition to a new application form (Form ETA 9089)  and the option for electronic filing, under the new program, the DOL is expected to take between 45 and 60 days to process each application.  This is a dramatic  change from the now two-year processing time under the former Reduction In Recruitment program.  To process PERM applications, the DOL has created two  national PERM Processing Centers, one in Chicago and one in Atlanta.  All PERM  applications will be processed at one of these two facilities.

Step 1:  Obtain a prevailing wage determination.

 To initiate an  application for permanent residence under PERM, the first step is to obtain a determination of the prevailing wage from the State Workforce Agency (the Labor  Market Information Division in California).  Under the PERM program, the employer will be required to offer 100% of the prevailing wage for the position listed in the application.  This is a change from the current program, where payment of only 95% of the prevailing wage is required.  Further, the current  system of determining the prevailing wage rate allows for only 2 levels.  The PERM program further divides the prevailing wage rates into 4 levels commensurate with experience, education and level of supervision required for  the position.

Another change that  is included in the PERM rules is when the minimum requirements for a position will be viewed as excessive.  Under the current program, an employer is allowed  to use the Specific Vocational Preparation (SVP) assigned by the DOL in the Dictionary of Occupational Titles.  The PERM program eliminates the use of the SVP and requires, instead, the use of the O*Net Job Zone classification system.  Under the O*Net system, the maximum requirements for most positions are lower  than they are as currently classified under the SVP system.  For example, under the current rules, the SVP for a Software Engineer is 8 (defined as requiring over 4 years and up to 10 years of education/experience).  Under the PERM program, the O*Net classification for a Software Engineer is Job Zone 4 (defined  as requiring over 2 years and up to 4 years of education/experience).  Keeping  in mind that the DOL considers achievement of a Bachelor’s degree the equivalent of 2 years toward these requirements, and the achievement of a Master’s degree the equivalent of 2 additional years, in most applications for a Software  Engineer, the maximum educational and/or experience requirement accepted by the  DOL will be a Bachelor’s degree and 2 years of related experience OR a Master’s degree and no experience.

Step 2:  Place a job order. 

Once the prevailing  wage has been determined, the next step is to request placement of a job order  with the State Workforce Agency.  The job order must be in place for 30 days before an application under PERM can be filed.  Under the job order program, applicants may apply for an opening through the EDD.  Any applicants for the position must be interviewed to determine whether they are qualified, interested  and/or available U.S. workers.  Documentation of the applicants and the interviews must be maintained in an internal file.

Step 3:  Additional Pre-filing Recruitment. 

The PERM regulations make several  changes to the requirements for advertising for the position offered.

• First, each application will require that the employer place a job order with the state for a period of 30 days (see Step 2 above).
• Second, the Notice of Job Opportunity  that is required for each position must be posted at least 30 days (but not more  than 180 days) before filing an application.
• Further, the employer must submit evidence of 2 advertisements in 2 different Sunday classified sections of a newspaper of general circulation.  The ad must include  the following details:  name of the employer; area of employment; a brief description of the position, and; instructions for applicants to send resumes.   The ads eBay and PayPal currently submit for permanent labor certification applications do not include any description of the position, and this is one  change that must be made before any applications can be filed under the PERM program.  We are currently reviewing these advertising requirements to provide  an appropriate draft Advertisement for eBay and PayPal that will comply with  these new requirements.
• Finally, 3 additional  forms of recruitment will be required for professional positions.  The list of  additional forms of recruitment includes job fairs; company web site; job search web sites; on-campus recruiting; trade or professional organizations; private  employment firms; employee referral program that include identifiable incentives; job posting at a campus placement office; local and ethnic newspapers, if appropriate, and; radio and television  advertisements.

 Step 4:  Recruitment report.

Although not submitted with the application, each application will require that a recruitment report be maintained, to describe the steps taken to recruit U.S. workers and the results of the recruitment.  This report must  include the number of hires, the number of U.S. workers rejected, and the lawful business related reason for rejection.  If a U.S. worker is rejected on the  basis that the worker lacked a skill required for the position, the employer must show that the worker could not have acquired this skill within a  “reasonable period of on-the-job training.â€�  The employer must also confirm in this report that it has offered the position to all employees laid-off in the 6  months immediately prior to filing an application.  This requirement applies to employees laid-off from the position listed in the application or any related occupation where the majority of the essential duties involved are the same as  the offered position.

       Audit:  Once an  application has been reviewed, the DOL may request an audit of any application, either for cause or at random.  If an application is selected for an audit, the  DOL will send a letter providing a list of the additional documents required  (e.g. copies of newspaper advertisements, recruitment report, copies of resumes  received in response to the recruitment) with a deadline of 30 days from the date of the letter to submit that documentation.  Although one extension of 30 days may be allowed to respond, if an employer does not respond properly and  timely to an audit letter, an application may be denied.  In some cases, the DOL may require supervised recruitment.  If supervised recruitment is required for  an application, the DOL has the authority to require supervised recruitment for any future applications filed for up to 2 years.

       Conversion:  Under  the PERM regulations, conversion of a pending case to the PERM program will be allowed.  To make the conversion, the employer must request that the pending  case be withdrawn upon the filing of the new PERM case.  Successful re-filing  will result in preservation of the original filing date for that application.   This filing date will continue to be important for individuals who must preserve their eligibility for continued extensions of H-1B status beyond 6 years, as well as for individuals affected by the retrogression of available visa numbers in employment-based categories.  In order to be eligible for conversion, the re-filing must occur before placement of a job order and the job  opportunity must be identical to the original application.

The drafting of  a PERM labor certification application requires careful legal analysis to ensure the DOL does not classify the application as ”unduly restrictive” and to ensure  that the application is completed properly.  Our experienced immigration attorneys can help the employer and employee navigate successfully through this  process.