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)
