| The "PERM" Process |
Law Offices of Gilbert
C. Ferrer PLLC
C. Ferrer PLLC
See below for a summary of the PERM process. PERM and Backlog Reduction News - October 13, 2008 - Up until last year at this time the PERM process was viewed as a success. Processing was within the parameters claimed and relatively few audits were required. However, this situation may have been the seeds of its own undoing. Criticism arose that the DOL was not providing sufficient review of the applications prior to adjudication. Accordingly DOL began auditing a large percentage of the cases being filed. The back log of cases where DOL has received responses to the audit requests currently extends back 18 months. A new PERM appplication portal is under construction and is planned for launch in January 2009 April 22, 2005 - There have been reports of many employers seeing denials of their PERM applications when checking the automated case status system. At first it was thought that there were a result of system error, but they appear to be actual denials. These are not denials on the merits of the application but apparently result from the automated system, which will immediately deny applications for certain faults in the information provided. For example: • If the prevailing wage determination is dated prior to March 8, 2005 it will be rejected. • The recruitment job order must have been open for at least 30 days. Many job orders were opened in February, which was a 28-day month this year. So, if a job order is listed as having run from 2/14 to 3/14, that period would have fallen short of 30 days required, resulting in rejection. • At least 30 days must have elapsed since the end of the recruitment period. Apparently, a number of applications have been submitted before the 30 days have run. • It also appears that if a registration of an employer was made from an attorney’s computer rather than the employer’s, a denial could result. • Answering “no” to the question of whether the job has been offered to the foreign national listed as beneficiary on the application will result in denial. All these issues appear to be based on errors that will decrease as employers and their attorneys get used to the PERM system. So far, none of the rejections have generated denial letters that specifically explain the reasons for the denials. Keeping Old Priority Date? - One of the characteristics of PERM that has interested many people is the ability to file a PERM case and take the original filing date from a previously filed traditional or RIR labor cert. DOL's regs state that the case must be identical to the previously filed case in order to transfer the filing date. DOL has now stated that when it says identical it means identical. Everything must be the same (even the address, according to the chief of the labor cert department.) The only thing that can be different is the wage being offered.in order to carry the original note that it may not be the best idea to a PERM application and request that the old priority date be maintained (unless this is absolutely necessary.) One issue: The new labor cert form requires that a box be checked that the old filing date is being requested. This apparently acts as an automatic withdrawal of the original application. What happens if the DOL then decides that the new application is not "identical" to the old one? It will treat the old case as being withdrawn and process the new application with a new priority date. For people who need to keep the old date, either to process a 7th year H-1B extension or to maintain a current priority date for EB-3 immigrant visa processing, this is highly problematic The USCIS attorney suggested filing the PERM but not checking the box, thereby allowing the old case to continue. However, CIS and DOL intend to discuss this futher. Backlog Reduction - The DOL reports that it expects that all pre-March 28th traditional and RIR labor certs will be in the backlog reduction centers by the end of April. It is still conducting data entry on the 250,000 cases received so far at the centers in Philadelphia and Dallas. So far they have entered data on 87,000 files. DOL's processing of a particular file depends on when they receive the box of files from the state agency or the region. They have not been receiving them in order all the time. That is why sometimes a case will seem to be going much faster than cases filed months earlier. That is also why their processing times will go back and forth as they get new boxes of older cases from the states. The backlog reduction centers are working on both traditional cases and RIR. They are not giving priority to RIR. In general an RIR will be processed faster because much of the work will have already been done. However, all applications are being processed in a first in first out basis. The PERM Process The final regulations making major changes to the labor certification process took effect on March 28, 2005. Some of the significant procedural aspects are summarized here. Initial Stage of The Permanent Residency Process Some brief background: The labor certification is the first step in the employment sponsored permanent residency process. In order to offer a position to a foreign worker the employer must first obtain a certification from the Secretary of Labor that there are no US workers available in the area of employment who meet the minimum requirements of the position. The certification also states that offering the position to a foreign worker will not adversely affect the working conditions of US workers. Once it is approved the employer can then use the Labor Certification as the basis for an Immigrant Petition to classify the worker in an immigrant category for permanent residency. New Process Electronic Filing. The initial filing of an "Application for Permanent Employment Certification" will no longer be made to the appropriate State Workforce Agency ("SWA"), but rather directly to the Department of Labor using a new form, the ETA 9089. This form can be filled in and submitted electronically online at the DOL website or it can be filled in by hand and mailed. If filed electronically it is filed as of the date of submission. If it is mailed it is date stamped with the filing date when received by DOL. I’ll refer to the application herein as the APEC. Prevailing Wage Request from SWA. While the APEC is no longer submitted to the SWA, the State agency will have to make an initial prevailing wage determination before the APEC is filed. That request will be made using the form provided by the SWA. The APEC cannot be filed until the determination is provided to the employer. The specific information regarding that wage determination must be filled into the ETA 9089 form that will be used. ETA 9089. Like the ETA 750 (the form currently used,) the new form will contain detailed information about employer, the job being offered and the employee’s qualifications and will require the signatures of both the employer and the employee. A sample ETA 9089 in pdf format is attached. Special Skill Requirements Based on Business Necessity. The proposed regulations had eliminated the employer's flexibility to require special skills and experience for the position based on "business necessity." This would have made the labor cert process rigid and not easily usable for other than very generic occupations. However, recognizing this, the DOL will continue to allow special skills to be required. Approval of the Application. Originally APEC's were generally will be certified within 45 and 90 days from filing, unless denied or audited. NOW, it may be up to 15 months. No evidence of recruitment need be filed with the form ETA 9089, BUT in the event of audit, the employer will be required to provide all of the evidence of recruitment that is set forth below. Audit of Applications. If an application is chosen for audit, the process can proceed much like a labor cert under the current process. The certifying officer may require the employer to produce a recruitment report or conduct additional supervised recruitment (like in a basic labor cert case). DOL plans to conduct random audits to ascertain compliance with the process (to keep employers honest, in other words.) Currently Audit response reviews are backlogged up to 18 montns. Conversion of Pending Applications. If an employer has a pending application filed under the old regs (either basic or RIR), they will be able to do a new application under the new process and keep their original filing date.
application with a new filing date. The old application will still be considered withdrawn. The issue of filing dates will become significant because of the backlogs in EB-3 categories beginning in January 2005. New Process Replaces RIR/Basic Applications. This new process will supersede the RIR process for new filings after the effective date of the regulations, March 28, 2005. Applications that are not converted to PERM, will continue to be processed by the DOL backlog reduction centers and regional offices. The net effect is that an application on file under the old process prior to March 28th, can still be processed under the old rules. However, a change to the PERM process, will require a complete withdrawal of the old application and a completely different filing using the PERM process and forms. If the job description in the PERM application is identical to the previous filing, the original filing date can be preserved. PERM Recruitment.The employer has to have completed all recruitment efforts no later than 30 days (with one exception) and no earlier than 180 days before filing the application. The employer has to order a 30 day job order posting with the SWA. This will post the job opportunity in all of the SWA's job centers in the region. This is currently a requirement of the basic process, not RIR.
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and must not be relied upon for any specific application. Be advised that immigration laws and policies change
frequently. In light of the complexities and changes in both the substance and interpretation of U.S.
Immigration Law, it is necessary to seek competent legal advice concerning the application of U.S. immigration
law to any particular individual.
© 2004-2005 Gilbert C. Ferrer, Attorney at Law / All Rights Reserved.
and must not be relied upon for any specific application. Be advised that immigration laws and policies change
frequently. In light of the complexities and changes in both the substance and interpretation of U.S.
Immigration Law, it is necessary to seek competent legal advice concerning the application of U.S. immigration
law to any particular individual.
© 2004-2005 Gilbert C. Ferrer, Attorney at Law / All Rights Reserved.
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