“PERM” Is Finally Here
The
Department of Labor (DOL) has finally published their new
regulations (referred to as “PERM”) that will change the
way labor certification (LC) applications are processed.
In its expanded form, PERM stands for Program Electronic
Review Management. The new law, which takes effect on March
28, 2005, will speed up the processing time of LC applications
for the permanent employment of foreign nationals in the
United States. Under the new law, the promised turn around
time will be between 45 - 60 days as compared to the former
turnaround time under “RIR” (Reduction in Recruitment) of
well over two years. Speaking with Pakistan Link, Attorney
James E. Root, who manages an exclusive immigration practice
with two offices in Los Angeles and Orange Counties, said,
“The DOL has amended its regulations governing the filing
and processing of labor certification applications to implement
a new system.
The new system requires employers
to conduct recruitment before filing their applications.
State Workforce Agencies (SWAs) will provide prevailing
wage determinations to employers, but will no longer receive
or process applications as they do under the current system.
Employers now will only be required to place a job order
with the SWA. Employers will have the option of filing applications
electronically, using web-based forms and instructions,
or by mail.” The main advantage of PERM, as Mr. Root sees
it, is its quick turn around time. Another advantage is
that “employers will have the option of withdrawing an existing
application and re-filling it to take advantage of the faster
processing time.” “This process is often referred to as
a ‘conversion,’” Mr. Root says, adding “one of the advantages
of conversion is that it will allow a foreign national employee
who currently holds an H1B status to continue extending
that status beyond the 6th year without any problems.” However,
Mr. Root cautions, “Conversion is not as simple as it may
seem.
Firstly, it requires withdrawal
of the pending LC, after which the conversion follows. Rules
of conversion process require hat the new application under
PERM has to be almost identical to the original withdrawn
application. Obviously, there is an element of risk because
if the conversion is not successful, the priority date would
be lost.” Nevertheless, Mr. Root says that “an employer
who successfully withdraws and re-files a pending application
can preserve the application’s priority date (the original
filing date). In light of the recent retrogression of visa
numbers in the employment-based third preference (“EB3”)
category this is an important factor to consider.” On the
downside, Mr. Root figures that there would be more recruitment
requirements for professional occupations.
Further, the prevailing wage
standards for PERM is 100 percent of the appropriate wage
for the occupation, whereas in RIR, the wage was allowed
to be discounted 5 percent. PERM’s anti-fraud provisions
include stringent verification of employers’ bona fide business
entity and employees on its payroll. For more info or a
“free” initial consultation please contact him at 1(888)
ROOT-LAW or visit his website at www.RootLaw.com.
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