The "PERM"  Process
Law Offices of Gilbert
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.  
  • Conversion must be made before the SWA opens a job order in the old case
    and the new PERM application must meet all the requirements of the new
    rules.  
  • The job opportunities as described in both old and new applications must be
    identical.  
  • The employer is required to withdraw the old application.  
If the request to keep the old filing date is denied, the DOL will process the new         
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.  
  • The job opportunity must be posted at the work site for 10 consecutive
    business days.  The notice period must be between 180 and 30 days before
    filing.
  • Two newspaper ads in the Sunday paper with enough information to identify
    the job being offered, the employer and contact information.  They do not
    have to be spaced out in any specific period of time.  They can run on
    consecutive Sundays.  Detailed information about the job, including salary
    offered, is NOT required.  The proposed regs had required detailed
    information and the salary be stated in the ad.  This change means that in
    many cases, ads that were run for RIR will be usable for the new PERM
    process.
  • If the job requires, at minimum, an advanced degree and experience, then in
    lieu of one of the newspaper ads an ad the employer has the option of
    placing an ad in an appropriate professional journal.  The proposed
    regulations had required the professional journal placement.
  • At least three other means of recruitment including job fair, external Internet
    posting, employer electronic job board and internal web site postings must be
    completed within the six month period for professional positions.  One of
    these may be completed within 30 days prior to the filing of the application.



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