Labor certification in 45 days under the new ‘PERM’ program?

On December 27, 2004, the Department of Labor (DOL) published regulations for the "Program Electronic Review Management" system, or PERM. These new regulations, (which are to be effective on March 28, 2005), change and streamline the existing labor certification process, which has been criticized as being complicated, time consuming (four or more years to process), and requires the expenditure of considerable resources by the employer and government.

According to the Department of Labor, it is anticipated that a decision on a labor certification case could be issued "within 45 to 60 days of the date the application was initially filed" (provided a case is not "audited" for irregularities or suspected fraud).

The regulations are lengthy and rather complex. Here are some frequently asked questions about PERM:

1. What are some of the basic changes brought about by PERM to the existing labor certification process?

a. New System (PERM): The new system (PERM) requires employers to conduct recruitment before filing their labor certification applications (similar to the existing "Reduction in Recruitment" process).

Present System: The labor certification application is first filed with the State Workforce Agency (SWA), and then supervised recruitment follows.

b. New System (PERM): SWAs (such as California’s EDD) will no longer receive or process labor certification applications. Instead, the Department of Labor itself will handle virtually all the processing. The SWAs will now handle only prevailing wage determinations (i.e. advising the employer what the prevailing wage is).

Present System: Cases are filed with the SWAs, which oversee and supervise the recruitment process, and then forward the case to DOL.

c. New System (PERM): A new labor certification form will be used (Form ETA 9089). This form can be filled out and filed either electronically (via the internet), or sent by mail to DOL.

Present System: The form now used is ETA 750, Parts A &B, and is mailed to the SWAs.

2. Is there any change to the prevailing wage that the employer must offer?

Yes. PERM requires that the employer offer (and pay) 100 percent of the "prevailing wage", which is the average wage for the job as determined by the DOL through various wage surveys. Under the existing system, the employer could offer up to only 95 percent of the prevailing wage.

3. What happens to labor certifications filed before PERM’s effective date of March 28, 2005?

Labor certification applications filed before PERM’s effective date of March 28, 2005 will continue to be processed and governed by the current regulations, except to the extent that an employer wants to withdraw an existing labor certification application, and re-file it in accordance with the PERM regulations.

4. How will the employer conduct recruitment under PERM?

During the six-month period before filing the new Form ETA 9089, employers will be required to place a job order with the SWA (i.e. posting a job notice on the SWA’s internet job site) and run two Sunday newspaper advertisements.However, the job order and newspaper ads cannot be placed less than 30 days before filing the ETA 9089. (In the past, newspaper ads would run for three consecutive days, and did not have to necessarily be on a Sunday). There are additional recruitment requirements for "professional" or college level jobs.

5. Is there any supporting documentation to be submitted to the Department of Labor with the Form ETA 9089?

No. The employer is to submit only the Form ETA 9089 (either electronically or by mail) to the Department of Labor, without any back-up documentation with the application. (Under the present system, supporting documentation is required, such as letters of experience, copy of college degree, etc. for the alien). Even though the employer would not have to submit any supporting documentation with the application, the employer will be required to maintain the supporting documentation, in the event the application is audited by the Department of Labor.

6. Will the Department of Labor investigate cases for possible fraud in the labor certification process?

Yes. Once the DOL receives the Form ETA 9089, it will check, among other things, whether the employer is a bona fide business entity, and already has employees on its payroll. For example, the DOL might cross-check the employer’s tax identification number with records from credit-reporting agencies, to make sure the employer has a credit history and is really "in business". The Department of Labor will also check to make sure the employer itself is aware that the application was filed on its behalf. (This is because, in the past, aliens might be petitioned by scam artists or non-existent employers, or a co-worker signed a labor certification application for the alien without the employer ever knowing a case was filed).

7. Will the Department of Labor charge any fees for PERM?

No. Until further notice, the Department of Labor will not charge a fee. However, the USCIS does charge fees for filing the petition, adjustment of status application, work authorization etc.

8. If I have an existing labor certification case, can I "convert" it to a PERM case?

Yes. According to the regulations, an employer may withdraw an existing labor certification application, and re-file a new case under PERM (and retain the original filing/priority date) up until the time that a job order is placed by the SWA under existing regulations (i.e. a case can be converted if the recruitment process has not yet begun under the existing labor certification process). The new case, however, must be for the "identical job opportunity" as existed under the original labor certification application. This means the same employer, same alien, same job title, same job location, same job description, and same minimum requirements. If the new application filed under PERM is not found to be "identical", then the re-file application will be processed based on a new filing date, and the original priority date will be lost.

Retention of the old priority date may be critical, especially in light of the retrogression of priority dates for Filipinos for labor certification.

The re-filing under PERM must be accomplished within 210 days from the date the employer withdraws the existing labor certification case. If the existing case is withdrawn after a job order has been placed by the SWA, the original priority date would not be retained.

Of course, the employer of an existing labor certification case can decide to continue under existing regulations, rather than withdrawing the existing labor certification and filing a new one under PERM.

As you can see, while PERM promises to be fast, there are still many requirements and steps that must be followed and met in order to gain fast "approval" of the case. That is why it is important that you seek the advice of a reputable attorney, who can guide you through the process, whether you already have the existing labor certification, and want to convert it to PERM, or want to file a brand new one under PERM.

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