PERM

On March 28, 2005, the Department of Labor (DOL) launched the “PERM” system, which totally overhauled the labor certification process for the permanent employment of foreign nationals in the United States.  While the new system is seen as an improvement over the previous system, in terms of shorter processing times, the new system dramatically changes the entire labor certification process by requiring employers and their legal representatives to engage in a detailed recruitment process prior to filing. For non professional cases this entails three (3) mandatory recruitment steps (posting on the company premises, posting with the unemployment service and two Sunday newspaper ads. Professional positions require six (6) recruitment steps be completed prior to filing. The three listed steps above and then choosing 3 additional steps out of a list of ten (10) choices.

Up until 2005, the permanent foreign labor certification process for employment-based immigration in the U.S. had been a two-tiered system involving both State Employment Security Agencies (SESA) and the U.S. Department of Labor (DOL) a system that has been in effect for more than 30 years. By its very nature there was an element of redundancy in case processing under this older system and it had been criticized for being costly, burdensome, and inefficient. The redesigned process, called “PERM”, (Program Electronic Review Management) that became effective on March 28, 2005, requires employers to submit their applications directly to ETA processing centers. The new process is designed to take advantage of state-of-the-art technology and the use of policy-driven standards to minimize manual intervention, and to increase the speed of case processing. Processing time from submission of the application with the Department of Labor is expected normally less than sixty 60 days for the majority of filings.  The process though, requires employers to undertake a significant number of pre filing actions before qualifying to submit the application.

The new system, streamlines the role of the former SESAs in the labor certification process to include only the prevailing wage determinations. Under the old system, prevailing wage determinations were made as part of the normal process of reviewing an application and informing the employer of any deficiencies therein. Under the new system, the employer will still be required to obtain a prevailing wage determination from the State Workforce Administration (SWA). The timing of the prevailing wage determination request has changed from a post-filing action to a pre-filing action.  This step is vital in order for the Department of Labor to meet its responsibility to make the statutorily required certification that the employment of a foreign national will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers.

The Department of Labor instituted the PERM system for processing permanent alien labor certification applications that is considerably streamlined but will not materially diminish any of the protections now afforded U.S. workers by the current regulatory and administrative requirements. The employer will be required to contact the SWA to obtain the prevailing wage determination for the occupation in the area of intended employment. This procedure operates in much the same manner as the one utilized for processing prevailing wage requests under the H-1B program for nonimmigrant professionals in specialty occupations.  

Upon receipt of a request for a prevailing wage determination under the PERM system, the SWA evaluates the particulars of the employer's job offer, such as the job duties and requirements for the position, and the geographic area in which the job is located. If the job opportunity is unionized, the wage rate set forth in the collective bargaining agreement that applies to the position will be considered to be the applicable prevailing wage. If the job opportunity is not unionized, however, as is most often the case, then the SWA will determine the occupational classification for the job using the Department's O'Net occupational classification structure. The SWA will also then determine the area of intended employment for the job opportunity. As a result of this analysis, the SWA will normally assign the prevailing wage rate and appropriate skill level for the job opportunity from the wage component of the Occupational Employment Statistics (OES) survey.

The employer also has the option of submitting an alternative source of prevailing wage information such as a published wage survey or other wage data obtained from a survey that has been conducted or funded by the employer. If the employer chooses to submit an alternative source of wage data, the SWA will evaluate the other information (e.g., a published wage survey) and will determine if it is in compliance with the Department of Labor's standards governing the acceptability of employer-provided wage data such as the validity of the statistical methodology employed. If the employer-provided wage data is found to be acceptable, the specific wage rate derived from that source that applies to the employer's job opportunity, taking into consideration such factors as the appropriate occupational classification, geographic area, and level of skill, will be considered to be the prevailing wage rate for purposes of that particular job opportunity. If the employer-provided wage data is not accepted, the SWA will inform the employer of the reasons why the survey is unacceptable. 

The SWA's response to the employer's request will be in writing on the same standardized form through which the request was initially made. The response will indicate the prevailing wage rate for the job opportunity, the source of such information, and the appropriate occupational classification and level of skill applied in the determination to arrive at that rate.

The employer will also be required to conduct an adequate test of the labor market for qualified U.S. applicants at prevailing wages and working conditions through sources normal to the occupation and industry during the 6-month period preceding the filing of the application. The required recruiting efforts that must be documented are similar to those required in the former Reduction In Recruitment (RIR) process in that all recruitment will be conducted prior to the employer’s filing of the application. The only true difference here is that this up-front recruitment system is required of all applicants under the new system. Regardless of the steps chosen by the employer to fulfill its obligation to conduct an adequate test of the labor market, the employer will be required to maintain documentation of the recruitment efforts it has undertaken and the results thereof, such as the lawful, job-related reasons for not hiring U.S. applicants for the position.

After the recruitment period has ended and the employer has assembled the requisite documentation in support of the application, the employer then submits the application directly to an ETA processing center. In developing the application form to be used in the new system, the Department of Labor has taken advantage of technological innovations that will increase efficiencies in the program. The labor certification application is directly completed in a web-based environment to eliminate the need for time-consuming data entry by ETA processing centers. Applications will be received by mail, or via Internet and will be subject to an initial acceptability check to ensure that the application can be processed. The purpose of this test is to ensure that an automatic data selection process can recognize the form. The acceptability test will consist of ensuring that a completed application form has been received, including the prevailing wage determination form issued by a SWA. Further, this initial test will determine whether the application is readable depending on the method of submission. For instance, if the application is submitted by mail it may not be acceptable if it is unreadable, too crumpled, stained or damaged to be properly entered into the system.

After an application has been determined to be acceptable for filing, which requires a pre-registration by an employer, a computer system will review it based upon various selection criteria or "flags" that will allow more problematic applications to be identified for an in-depth review or audit. In addition, it is anticipated that some applications will be randomly selected for an audit without regard to the results of the computer analysis as a quality control measure. If no request for an audit has been triggered by the information provided either on the application or via random selection, the application will be immediately certified and returned to the employer, who may then submit the certified application to the USCIS in support of an employment-based I-140 petition. If an application is not selected for an audit, (about 20% of all filings are subject to an audit) an employer will have a computer-generated certification decision within sixty (60) working days of the date the application was initially submitted.

If an application has been flagged for an audit, the employer will be notified and required to submit in a timely manner documentation verifying the information stated in or attested to on the application.

After an audit has been completed, DOL currently has three (3) potential actions the certifying officer can take on the application: 1) certification; 2) denial;  or 3) supervised recruitment. If the audit documentation is complete and consistent with the employer's statements and attestations contained in the application, the application will be certified and returned to the employer. If the audit documentation is not complete, is inconsistent with the employer's statements and/or attestations contained in the application, or is otherwise deficient in some material respect, the application will be denied and a notification of denial with the reasons therefore will be issued to the employer. If an application is denied by the certifying officer, the employer will have an opportunity for an administrative review of the decision. Lastly, on any application selected for an audit regardless of the reason for such selection, the certifying officer will have the authority to conduct supervised recruitment for the employer's job opportunity in any case where serious questions arise regarding the adequacy of the employer's test of the labor market.

Where supervised recruitment is required by the certifying officer, the Department expects that the procedure will operate much like the former non-RIR regulatory recruitment scheme under the basic process, except that the recruitment efforts would be directed by the certifying officer and would not be directed by the former SESA, as was the case under the prior system.  At the completion of the supervised recruitment efforts, the employer will be required to document that such efforts were unsuccessful, including the lawful, job-related reasons for not hiring any U.S. workers who applied for the position. After a review of the employer's documentation, the certifying officer will either certify or deny the application. In all instances in which an application is denied, the denial notification will set forth the deficiencies upon which the denial is based.

As of March 28, 2005 applicants are no longer able to file under the former system and must file under the “PERM” system.