Reality Check on the New “PERM” Labor Certification Processing System
By James E. Root, Esq.


As of March 28, 2005, the Department of Labor (DOL) implemented a new system called Program Electronic Review Management (PERM) designed to significantly reduce the processing time of labor certification (LC) applications for the permanent employment of foreign nationals in the United States. Under PERM, the adjudication time for an LC application is approximately 45-60 days, as opposed to at least two years under the Reduction in Recruitment (RIR) processing.
The new system requires the employer to conduct good-faith recruitment efforts before filing the LC application on behalf of the foreign national. The role of State Workforce Agencies (SWAs) has been reduced to simply providing prevailing wage determinations. Also, as part of the mandatory recruitment, the employer has to place a job order with the SWA for 30 days. Under PERM, the employer is no longer allowed to pay 95% of the prevailing wage, instead has to meet the prevailing wage in 100%. Employers can file LC applications electronically or by mail. However, it is strongly encouraged that employers file their application via the on-line PERM system, as the data from mailed-in LC applications still have to be manually put into the PERM system. This may cause unnecessary delay in processing time and more room for making mistakes.
In case of professional positions which require a bachelor’s degree, in addition to the mandatory SWA job order (30 days), posting notice (ten business days), and two Sundays ads in a newspaper, the PERM regulations also require the employer to conduct three additional recruitment steps, including: job fair, on-campus recruiting, employer website, trade or professional organization, job search website, private employment firm, employee referral program, campus placement office, local or ethnic newspapers, or radio or TV ads. The three additional recruitment steps have to be each of a different nature.
The PERM system has been in effect for over two months now, and the first certified LC applications were mailed out from Chicago on May 23, 2005 and from Atlanta on May 24, 2005. As of now, some American Immigration Lawyers Association (AILA) members have reported approvals in as little time as eight business days from the submission date. However, such speedy processing seems to take place only in easy, straightforward cases. In the initial phase of the PERM program, the Decision Logic has been also reported to experience plain errors leading to automatic denials of LC applications. More specifically, the DOL acknowledged three erroneous grounds for issuing denials.
First, the PERM system issues an automatic denial in error in cases where the alien has the experience in the alternate occupation specified but not in the job offered, even if it was indicated that experience in an alternate occupation is acceptable. The denial would erroneously state that the foreign national’s qualifications listed on the LC application do not meet the minimum requirements stated on the 9089 form.
Second, in professional position cases, the Decision Logic issues an automatic denial in error if one of the three additional recruitment steps took place within the last 30 days before submission of the LC application. The denial would erroneously indicate that more than one additional recruitment step was conducted less than 30 days from the date the application was filed.
Third, the system would automatically deny LC applications for household domestic positions, where the employer failed to post the notice. This type of denial contradicts 20 CFR § 610(d)(2) which provides for no posting being necessary for a worker in a household where there are no other US workers.
The DOL stopped sending out denial letters, in order to eliminate errors in the PERM system. The Decision Logic is still being re-programmed and DOL hopes to have the system fixed soon. In the meantime, all cases previously denied in error will be run through the PERM system again and undergo analyst review. Notices will be issued on those cases for which a denial still stands. According to DOL, these new notices will be mailed out in early July.
Audit is another factor that slows down the process of adjudication of LC applications. A need for audit can arise in cases where the employer has to justify business necessity such as a foreign language requirement. An audit letter may also request documentation to prove that the employer exists, the position is in fact being offered, or evidence of good-faith recruitment, including signed copy of the ETA 9089, signed recruitment report, evidence of the conduct of the recruitment steps, and copy of the prevailing wage determination.
DOL also put a hold on mailing out further Audit letters due to the adjustments being made to the Decision Logic. At this point, it is extremely difficult to predict when the PERM system will function without major errors.
(Mr. James E. Root exclusively practices immigration law. He has offices in the Los Angeles and Orange Counties. For a free initial consultation please contact 1(888) ROOT-LAW or visit www.RootLaw.com)


Editor: Akhtar M. Faruqui
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