Re-engineered Permanent Labor Certification Program (PERM)

History and Background

• A labor certification is required prior to petitioning the USCIS for permanent residence (“green card”) for certain employment-based immigrant visas.

• DOL certifies 1) not sufficient U.S. workers and 2) no adverse effect on U.S. workers

History and Background

• Previous process criticized as: Complex

Time consuming Resource intensive

Duplicative

• New system streamlines process

Highlights of PERM

• Employers must conduct recruitment before filing applications

• SWAs provide prevailing wage determinations, but will no longer accept or process labor certifications

• Employers have the option of web-based filing

• Must offer at least 100% of the prevailing wage

• Employer retains supporting documentation for audit purposes for five (5) years

• Business necessity included in final rule

• DOL estimated to make decision within 45-60 days

Prevailing Wage Determination

• Request prevailing wage determination from SWA on their form

• Validity period 90 days to 1 year from determination date

• Employers must file their applications or begin recruitment within the validity period specified by SWA

• 4-tier wage levels

Pre-filing Recruitment

• Separate recruitment requirements for Professional and Nonprofessional occupations

• Professional occupations are listed in Appendix A to the Preamble

• All occupations not listed in Appendix A to the Preamble are considered non-professional for the purposes of recruitment

Pre-filing Recruitment (Cont’d)

• Placement of job order with SWA

• Two Sunday newspaper advertisements – professional journal optional in certain cases

• Additional recruitment steps for professional occupations (3 of the following)

- The employer’s web site - Job fairs - Job search web sites - Private employment agencies

- On-campus recruitment - Trade or professional organization - Employee referral program - Campus placement office postings - Radio and television ads

• Must conduct 2 out of 3 forms of recruitment w/i 30-180 day period PRIOR to filing application

Contents of Advertisement

• Employer name

• Wage rate (optional)

• Description of vacancy and geographic area of employment

• Direct applications to report to, or send resumes to the employer

Job Opportunity

• Business necessity (BN) available

• No foreign language requirement, unless justified by BN

• Combination of occupations permitted when justified

• Alternative experience requirements permitted

Job Opportunity (cont.)

• Job requirements must represent employer’s actual minimum requirements

• Alien’s background must satisfy actual minimum requirements

• Alien’s qualifying experience cannot be gained with the employer, except in limited circumstances

• Definition of ‘employer’ determined by EIN

Other Requirements

• Notification to laid-off U.S. workers by the employer applicant

• Prohibition against alien influence and control over job opportunity

• Other layoff rules if within 6 months of filing LC

Recruitment Report

Recruitment steps undertaken

Results achieved and lawful reasons for rejection of U.S. workers

Maintain resumes/application materials for documentation/audit purposes (5 years)

Audit Letters• Based on 1) review of applications and 2) selection for

quality control purposes

• Must submit required documentation based on particulars of application

• 30-day response time for submittal of application documentation – 1 extension at COs discretion

• Failure to comply – application denied and future applications audited

• Application may be denied after review of supplied documents

• Supervised recruitment may be ordered by the CO (3-day newspaper, incl. Sunday, and 30 day JO)

Fraud, Revocation, Other Issues

• If possible fraud discovered before certification, referred to USCIS, DOL Inspector General

• If fraud found, application invalidated and processing terminated

• CO can revoke approved LC if finds certification was not justified (What does that mean?)

• No time limit on COs ability to revoke a certification

Re-filing of Pending Cases

Re-filing applications under PERM- must meet final rule recruitment requirements

(means employers may need to conduct additional recruitment)

- must be identical application - current application considered withdrawn (re-

file considered a withdrawal; must re-file within 120 days)- re-filed applications may take longer to process than other ETA Form 9089s

Strategic Considerations

• Advantages of filing before PERMLess costly recruitment

Lock in Priority Date – (EB3 Retrogression)

• Re-filing under PERM – Potential to Lose Priority Date

• H-1B 7th Year Extension Issues

THANK YOU

Bashyam & Spiro, LLPTel: 919-833-0840

www.bashyamspiro.com