One of the most significant changes in employment-based immigration will take effect on March 28, 2005.
Delayed by more than four years from its original projected publication date, the Department of Labor has finally promulgated its long-awaited PERM labor certification regulations.
By way of background, most foreign nationals who seek to immigrate (obtain permanent residence or green card) through employment do so through Labor Certification Applications filed by their employers.
The exceptions are aliens of extraordinary ability, outstanding professors and researchers, multinational managers, aliens performing services in the national interest, certain religious workers and investors.
The Labor Certification Application requires the employer to engage in recruitment to try to find a qualified and available U.S. worker to fill the position offered to the foreign national. Upon satisfying the Department of Labor that these recruitment efforts failed to produce such a qualified worker and that the foreign national is being paid the “prevailing wage”, the Department of Labor will certify the alien’s employment. Although there are two further steps (employer’s Immigrant Petition and foreign national’s Application for Permanent Residence) filed with U.S. Citizenship and Immigration Services, the Labor Certification is usually the most difficult and critical step in the permanent residence process.
A major problem with the Labor Certification process has been the egregiously long processing times for the Department of Labor to perform its function. Through a combination of state and federal processing delays, Labor Certification Applications have taken from two years to five years or even longer to be processed. The new PERM (Program Electronic Review Management) system replaces the individual case adjudication system of the past with a more IRS-like self – attestation and government audit system. The employer is required to complete a lengthy application form describing the position’s duties, the job requirements, the alien’s background and other information. The employer, or its attorney, files the application either electronically or by mail. Assuming the application is complete in all respects, the Department of Labor anticipates adjudicating approximately 80% of the applications based upon the employer’s attestations within 60 days. The other 20% of the applications will be audited, chosen either by a computer system selecting applications for audit based upon answers to certain questions, by random selection, or by the Department of Labor examiner requesting an audit of a specific case. Although the application will be filed without any supporting documentation, in the event of an audit, the employer will be required to produce substantial documentation to support the attestations on the application.
Following the audit, the Department of Labor will either approve or deny the application or require additional “supervised recruitment”. Supervised recruitment entails recruitment done under the auspices of the Department of Labor with all advertisements soliciting applicants to submit their resumes to the Department of Labor, which would then forward them to the employer.
Although the PERM system promises to accelerate immensely the application process in most cases, at the same time it requires more substantial recruitment of employers and subjects employers to more stringent legal standards. The required recruitment varies depending upon whether the position is a “professional” or “non-professional” position. In the event of a non-professional position, the employer must place two Sunday newspaper advertisements, a job order with the state job bank, and an internal posting notice. In the case of a professional position, all of the above is also required. In addition, the professional position requires three additional forms of recruitment from a list of ten choices, including: attendance at job fairs; employer’s web site; job search web site; on-campus recruiting; newsletter of a trade or professional organization; private employment firm; employee referral program with identifiable incentives; notice of job opening at a campus placement office; advertisement in local or ethnic newspaper; radio and television advertisement. All of the required recruitment steps must take place no more than 180 days before filing, and only one of the steps may take place within thirty days before filing.
The more stringent legal requirements revolve around the education and experience that the employer can require for the position. The Department of Labor is introducing a new system (O’NET SVP) to determine what are considered the normal requirements for a particular position. Many of the occupations contained in the O’NET SVP specify unrealistically low levels of education and experience requirements. If employers require more than the O’NET SVP specifies, the employer is put to a test of justifying and documenting the “business necessity” for the higher-than-normal job requirements. If the position requires a foreign language, the “business necessity” documentation is even more stringent. If the foreign national did not have the experience in the occupation prior to his employment with the applying employer, but had experience in a related alternative occupation, again more stringent requirements take hold. In these cases, the employer cannot disqualify a U.S. applicant based on not meeting the education and experience requirements specified. Rather, the employer must consider any combination of education, training and experience that would enable the applicant to perform the job duties.
Another area that is likely to be problematic under PERM involves the alien who qualifies for the job based upon experience gained in a different position with the same employer. In that event, the employer must prove and document that the position in which the alien gained experience was not “substantially comparable” to the position in the Labor Certification Application. Substantially comparable is defined as 50% or more of the time spent performing the same job duties.
As with the pre-existing Labor Certification Application system, PERM has a prevailing wage requirement. However, there are changes in both procedure and substance. Previously, employers were permitted to pay 95% of the prevailing wage; under PERM, they will be required to pay 100%. Previously, prevailing wages were determined by the state labor office after the filing of the application. Under PERM, a prevailing wage must be obtained from a State Workforce Agency prior to the filing of the application. If the employer does not agree with the prevailing wage, there is an appeal procedure which must be exercised before the filing of the Labor Certification Application.
Under the old system, the government’s Occupational Employment Statistics (OES) surveys were divided into two levels — roughly corresponding to entry level and experienced. Under PERM, four levels will be provided. In addition, employers who do not wish to rely on the OES statistics may produce a private survey using either mean or median figures to determine the prevailing wage for the position in the area of intended employment.
All cases filed on or after March 28, 2005 will be required to be filed under PERM. All cases filed prior to that date will continue to be processed under the pre-existing standards. For that purpose, two Backlog Processing Centers (Bala Cynwyd, PA and Dallas, TX) have been established to adjudicate the pre-existing cases. The new PERM cases will all be processed in two new centers, one in Atlanta, and one in Chicago.
As of the date of this writing, there are more questions than answers regarding the details of the new PERM system. If it works as advertised, Labor Certification Applications as a means of obtaining permanent resident status may become worthwhile vehicles toward the goal of obtaining permanent residence status for employees within a reasonable period of time. Whether that, in fact, happens, or whether the new system falls victim to the unconscionable delays of the previous system, remains a matter of conjecture.
