For Anyone Interested in an Easy to Understand Version on the New PERM Rules
Feb 1st 2005, 9:35 pm
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For Anyone Interested in an Easy to Understand Version on the New PERM Rules
This is probably about the most accurate and easy to understand that I have read so far, for anyone with pending labor certs, or interested in going down this read, thought it may be helpful.....
Final PERM regulation published
After years of postponements, the final PERM ("Program Electronic Review Management") regulation will be published on December 27, 2004, and will go into effect 90 days later, on or about March 28, 2005. After that date, PERM will be the only way to file labor certifications (also known as "labor certs" or "labor clearances"). Labor certification is required for most employment based green card applications. Labor certification is a determination by the Department of Labor that there are no U.S. workers who are qualified and available for the job in question.
In our view, PERM is a vast improvement over the old system due to the streamlining of the process. It should be possible to file I-140 and adjustment applications within a matter of months from beginning a green card case, at least for those with current priority dates. [/I][[ question from me - what is a current priority date???? ]]
It is expected that most PERM applications will be processed to completion within 45-60 days. Pending applications can be converted to PERM. This means anyone can have an approved labor certification by the middle of 2005 if all the requirements are met.
There have been many changes to PERM from the proposed regulation. Mostly these changes are beneficial to those filing labor certifications.
All PERM applications will be filed directly with the Department of Labor over the Web. The state agencies will supply the prevailing wage, but will have no other involvement in the process.
Before filing an application, the employer must conduct specified recruitment activities, similar to RIR recruiting under the current system. This recruitment must include the following:
Two Sunday newspaper ads (or one Sunday newspaper ad and a professional journal where appropriate)
A job order through the state workforce agency
For professionals, at least three other forms of recruitment, which can include a commercial Internet ad; an ad on the employer's Web site; an internal incentive program; participation in a job fair; on-campus recruiting or use of a campus placement office; local or ethnic newspapers; a trade or professional journal; a radio or TV ad; and the use of headhunter agencies.
As recommended in comments from our law firm, the Department of Labor greatly expanded the list of alternative recruitment methods that can be used to satisfy the requirements. Also, the salary need not be stated in the ad. This is a big change from the proposed regulation.
The advertising must have occurred within six months of filing the application. All but one ad and an internal notice must be placed a minimum of thirty days before the application is filed. It would therefore take about sixty days at a minimum to prepare and file a PERM case. This means you can start now to prepare your PERM application to file on March 28, or to convert your current case to PERM.
As part of preparing the application, the employer must obtain a prevailing wage determination ("PWD") from the State Workforce Agency (SWA) before the application is filed. The wage offered must meet or exceed the PWD. This is another big change from current procedure. At the present time, the SWA determines the prevailing wage after the application is filed. This means the PERM application cannot be filed (and no priority date can be established) if there is an unresolved dispute over the prevailing wage.
There are also big changes in the way the prevailing wage is determined. Most important, the employer must now offer 100% of the prevailing wage, not 95% as before. However, there may be more flexibility in sources of prevailing wage information.
A prevailing wage problem will stop a PERM case before it starts. This is an area where a competent lawyer can make a huge difference in the outcome of a PERM case.
No documentation need be submitted with the application. However, the employer must maintain copies of the ads, resumes, and other documents showing that the recruitment actually occurred as reported. The DOL will audit selected cases. Applicants must then produce all supporting documents in thirty days. If the documents cannot be immediately produced, the application will be denied. Applicants must resist the temptation to cut corners with PERM.
PERM does not change the special rules available for Schedule A occupations including nurses and physical therapists (who are pre-certified) and university teachers (who apply under an easier-to-meet standard).
Cases can still be filed under the current system until PERM takes effect. These cases, and all other pending cases, will be sent to national backlog centers operated by the Department of Labor. The state workforce agencies will no longer handle any permanent cases. All such cases will be handled in the order originally received regardless of the state of origin. Therefore, old cases from places like New York, California, and Indiana will be processed first. The DOL hopes to get rid of all non-PERM cases within two years.
Existing cases can also be converted to PERM cases without loss of the original filing date. This will be very helpful to Indian, Chinese and Philippine workers affected by the retrogression of priority dates. It will also help people to get seventh-year H-1B extensions. The new cases must be for the identical job opportunity to maintain priority date.
The new PERM regulation is 322 pages long, and it is impossible to summarize every provision. There are many differences from the old system. Some of these differences will create serious difficulties for some employers, others will not.
There will be many challenges for employers and their attorneys in complying with the PERM rules, and mistakes may have very serious consequences. It is more important than ever to seek out experienced counsel to guide you through the minefields of this new procedure.
Our firm looks forward to helping companies and their foreign workers throughout the United States obtain labor certifications under the new system quickly, efficiently, and with the highest ethical standards.
Final PERM regulation published
After years of postponements, the final PERM ("Program Electronic Review Management") regulation will be published on December 27, 2004, and will go into effect 90 days later, on or about March 28, 2005. After that date, PERM will be the only way to file labor certifications (also known as "labor certs" or "labor clearances"). Labor certification is required for most employment based green card applications. Labor certification is a determination by the Department of Labor that there are no U.S. workers who are qualified and available for the job in question.
In our view, PERM is a vast improvement over the old system due to the streamlining of the process. It should be possible to file I-140 and adjustment applications within a matter of months from beginning a green card case, at least for those with current priority dates. [/I][[ question from me - what is a current priority date???? ]]
It is expected that most PERM applications will be processed to completion within 45-60 days. Pending applications can be converted to PERM. This means anyone can have an approved labor certification by the middle of 2005 if all the requirements are met.
There have been many changes to PERM from the proposed regulation. Mostly these changes are beneficial to those filing labor certifications.
All PERM applications will be filed directly with the Department of Labor over the Web. The state agencies will supply the prevailing wage, but will have no other involvement in the process.
Before filing an application, the employer must conduct specified recruitment activities, similar to RIR recruiting under the current system. This recruitment must include the following:
Two Sunday newspaper ads (or one Sunday newspaper ad and a professional journal where appropriate)
A job order through the state workforce agency
For professionals, at least three other forms of recruitment, which can include a commercial Internet ad; an ad on the employer's Web site; an internal incentive program; participation in a job fair; on-campus recruiting or use of a campus placement office; local or ethnic newspapers; a trade or professional journal; a radio or TV ad; and the use of headhunter agencies.
As recommended in comments from our law firm, the Department of Labor greatly expanded the list of alternative recruitment methods that can be used to satisfy the requirements. Also, the salary need not be stated in the ad. This is a big change from the proposed regulation.
The advertising must have occurred within six months of filing the application. All but one ad and an internal notice must be placed a minimum of thirty days before the application is filed. It would therefore take about sixty days at a minimum to prepare and file a PERM case. This means you can start now to prepare your PERM application to file on March 28, or to convert your current case to PERM.
As part of preparing the application, the employer must obtain a prevailing wage determination ("PWD") from the State Workforce Agency (SWA) before the application is filed. The wage offered must meet or exceed the PWD. This is another big change from current procedure. At the present time, the SWA determines the prevailing wage after the application is filed. This means the PERM application cannot be filed (and no priority date can be established) if there is an unresolved dispute over the prevailing wage.
There are also big changes in the way the prevailing wage is determined. Most important, the employer must now offer 100% of the prevailing wage, not 95% as before. However, there may be more flexibility in sources of prevailing wage information.
A prevailing wage problem will stop a PERM case before it starts. This is an area where a competent lawyer can make a huge difference in the outcome of a PERM case.
No documentation need be submitted with the application. However, the employer must maintain copies of the ads, resumes, and other documents showing that the recruitment actually occurred as reported. The DOL will audit selected cases. Applicants must then produce all supporting documents in thirty days. If the documents cannot be immediately produced, the application will be denied. Applicants must resist the temptation to cut corners with PERM.
PERM does not change the special rules available for Schedule A occupations including nurses and physical therapists (who are pre-certified) and university teachers (who apply under an easier-to-meet standard).
Cases can still be filed under the current system until PERM takes effect. These cases, and all other pending cases, will be sent to national backlog centers operated by the Department of Labor. The state workforce agencies will no longer handle any permanent cases. All such cases will be handled in the order originally received regardless of the state of origin. Therefore, old cases from places like New York, California, and Indiana will be processed first. The DOL hopes to get rid of all non-PERM cases within two years.
Existing cases can also be converted to PERM cases without loss of the original filing date. This will be very helpful to Indian, Chinese and Philippine workers affected by the retrogression of priority dates. It will also help people to get seventh-year H-1B extensions. The new cases must be for the identical job opportunity to maintain priority date.
The new PERM regulation is 322 pages long, and it is impossible to summarize every provision. There are many differences from the old system. Some of these differences will create serious difficulties for some employers, others will not.
There will be many challenges for employers and their attorneys in complying with the PERM rules, and mistakes may have very serious consequences. It is more important than ever to seek out experienced counsel to guide you through the minefields of this new procedure.
Our firm looks forward to helping companies and their foreign workers throughout the United States obtain labor certifications under the new system quickly, efficiently, and with the highest ethical standards.
