Some labor certifications approved quickly under PERM system, but increased audits delaying many cases

Our firm has received many approvals for PERM applications for a wide variety of jobs, confirming that properly prepared labor certifications filed under the new system can often be approved in three months or less once the cases are filed.

The advertising requirements under PERM take about three months to complete, and must be completed before the application is filed. This means in many cases our clients will have an approved labor certification about six months from the date the process is started. Cases that are audited or have other problems will take longer.

Now that the backlog reductions centers have completed processing of cases filed before the new PERM system started up, many analysts have been transferred to the PERM processing center in Atlanta Georgia. This has resulted in a much larger number of audits. Approximately one third of all cases are now being audited. Audited cases can take a year or longer to complete.

Send us email if we can help with your case. Here is some additional information about the PERM process:

PERM is an improvement on the previous system for two reasons. First, it is much faster. Second, it has clear rules that must be followed. If the rules are followed, and there are no U.S. workers available, the application will likely be approved.

PERM went into effect on March 28, 2005. PERM is now the only way to file labor certifications. 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.

PERM applications are filed directly with the Department of Labor over the Web. The state agencies will supply the prevailing wage, but no longer process the applications.

Before filing an application, the employer must conduct specified recruitment activities, similar to RIR recruiting under the previous 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.

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.

The employer must also post a notice of the filing, including the salary, at the place of employment. If the employer uses an intranet to post job openings, the same notice must be placed on the intranet.

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 the old procedure.

There have been 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 is now more flexibility in prevailing wage information, since the official wage statistics now provide four salary levels for each job instead of just two.

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.

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).

All cases filed before March 28, 2005 have been processed under the previous regulations by two national backlog centers operated by the Department of Labor in Philadelphia and Dallas. The state workforce agencies no longer handle any permanent cases. The backlog processing is now complete except for a handful of cases that went to appeal.

Effective July 16, 2007, a new Department of Labor regulation prohibits payment of any costs of PERM, including attorney fees, by the foreign worker. The employer must now pay all such costs. Also, this regulation prohibits substitution of beneficiaries on a labor certification. The regulation also provides that labor certifications expire after six months unless the I-140 has been filed.

Our firm looks forward to helping companies and their foreign workers throughout the United States obtain labor certifications under the new system quickly and efficiently.