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PERM - New Regulations for Labor Certification |
January 7, 2006
Previously published by Rochester Business Alliance HR Newsletter on March 2005
On December 27, 2004, the United States Department of Labor (DOL) published the long-awaited new regulations for replacing the current system of processing for labor certification applications. These regulations, called Program Electronic Review Management (PERM), become effective on March 28, 2005. The purpose of PERM is to eliminate the years of delay in processing labor certification applications that currently exist. Under PERM, labor certification applications must be submitted online using a new form ETA-9089. After the application is filed, the DOL has indicated that it expects to process the application within 45 to 60 days.
Labor certification (certification by the DOL that there exists an insufficient number of U.S. workers who are able, willing, qualified, and available at the employer's place of employment and that employment of the alien for whom certification is sought will not adversely affect the wages and working conditions of U.S. workers similarly employed), is the first step for most immigrants who want to adjust their status from a nonimmigrant visa status (e.g. H-1B, L-1, etc.) to permanent (green card) resident status. Applicants for green cards are subject to quotas based on their countries of origin. The date when an employer files the labor certification papers is know as the "priority date." The priority date establishes the beginning of the waiting period for the green card. This date is important because if the labor certification has been pending for 365 days or more, an immigrant whose six years of H-1B eligibility is running out can have his or her H-1B visa extended for a year while the application for permanent status is pending.
Until March 28, 2005, employers will have the choice as to whether to use the current labor certification process or the new PERM process. After March 28, employers will have to use the PERM process. The basic PERM requirements are similar to the labor certifications filed under the current system - the employer must obtain a prevailing wage determination from the State Workforce Agency and recruit for the job according to the criteria set forth in the PERM regulations. Employers that have labor certification petitions pending under the current process have the option of withdrawing the existing labor certification and submitting a PERM application. If the PERM application is filed within 210 days after the existing labor certification is withdrawn and the PERM application is "identical" to the withdrawn labor certification, then the PERM application will keep the existing priority date that the withdrawn labor certification had. Note, however, that the PERM regulations require that most advertisements must occur between 30 and 180 days prior to filing. This means that that the recruitment that was done for an existing labor certification will almost certainly be "stale" and will have to be redone for the PERM filing. Further, while under the current rules a labor certification cannot be revoked by a Certifying Officer once it is approved, under PERM the Certifying Officer can revoke the labor certification after approving it if the Certifying Officer finds that approval was not "justified."
Whether it is advisable to file a labor application under the current rules or PERM prior to March 28 or whether an employer should "convert" a previously filed labor certification to a PERM application must be analyzed on a case-by-case basis. The decision may depend, among other things, on how long the existing labor certification has been on file, whether the employer and the green card applicant are willing to pay the extra legal expenses and the cost of an additional recruitment campaign required by PERM, and other legal considerations such as the six-year H-1B limit, the possibility of the seventh year extension, and the possibility under PERM of revocation of the labor certification after it has been approved. It may even be possible (although no doubt risky) to get two bites at the proverbial certification apple by not withdrawing the existing labor certification and filing a PERM application in which the employer does not ask to have the original filing date used so that the existing labor certification is not deemed to be withdrawn.
The PERM regulations are lengthy (over 300 pages) and there are many issues that are currently being addressed. Employers are advised to consult with legal counsel before taking any steps that could adversely affect a pending labor certification.
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The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance. |
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