PERM Labor Certification

The Program Electronic Review Management (PERM) system was developed by the Department of Labor to replace the Labor Certification program which aims at speeding up significantly the foreign labor certification processing. Also, under the new regulations, the DOL will no longer supervise or review the prior recruitment of the employer; instead, the employer will have to attest to conducting good faith recruitment efforts in accordance with PERM. An employer’s recruitment efforts would be subject to DOL audits.

Under the new rule, SWAs will no longer have the authority to accept applications for alien employment certifications. However, they will continue to perform other traditional SWA functions, most importantly, providing employers with prevailing wage determinations and administering the state role in the temporary labor certification programs, including the H-2A and H-2B programs. In the meantime, until PERM becomes effective, SWAs will continue to accept foreign labor certifications. SWAs will stop accepting Form ETA-750s from employers 61 days after the publication of PERM.

HIGHLIGHTS:

Effective date: March 28, 2005 The prevailing wage standard is the same for both PERM and the recent H-1B amendments (100% of prevailing wage must be paid, but four wage levels available) The goal for decisions on PERM electronically filed applications is 45 – 60 days Conversion means withdrawal and refiling, and only for “identical job opportunities” No fees (future rulemaking possible) Anti-fraud provisions include verification that employer is a bona fide business entity with employees on its payroll No money penalties or debarment for fraud or willful misrepresentation of a material fact (future rulemaking possible)

Can cases be converted to PERM green card?

Yes, pending cases can be converted to PERM, however they will have to meet certain requirements. If not the case will be considered new. A new case can still be filed under PERM but will have a new priority date.

The regulation allows the withdrawing and re-filing of cases prior to the placement of a job order by the SWA under section 656.21(f)(1) of the current regulation. An employer who successfully withdraws and re-files a pending application will preserve the original filing date. This will be a key objective given the retrogression of the Third Preference anticipated on January 1, 2005. In addition, PERM applications will be processed in the order of receipt. However, all re-filed cases must comply with all the requirements of the new PERM final rules, including recruitment, minimum requirements, SVP, business necessity, audit procedures and prevailing wage.

Is recruitment the same as it was under previous methods such as RIR?

No. PERM green card has brought with it new requirements for recruitment. These requirements include a required advertisement in two Sunday edition major newspapers.

How much faster will Perm labor certification be compared to current processing?

Under current traditional Labor Certification processing the process can take 5 years or longer. Under RIR processing the Certification will take 2 to 3 years in California and most large cities. In smaller States RIR is taking one year. The PERM process will take 45 to 60 days.

Does PERM green card forget about the backlog?

It appears as if DOL has made a strategic decision to copy the model from USCIS and concentrate on speeding up future cases while focus on the backlog.. As noted above, few, if any, pending RIR cases will have recruitment that is not stale- that is to say, advertisements placed within 180 days of the March 28th effective date. Even if they were timely, cautious employers may be loath to risk the loss of an old priority date by seeking to re-file under PERM when the job opportunity may not be deemed to be identical or when certification is subject to revocation at any time for basically any reason in the sole estimation of the PERM Certifying Officer.

Should you have any other questions regarding the PERM labor certification, please call us at (818) 501-3641 and we will be glad to assist you in the best way we can. Initial consultation is FREE!