Lev Kobrin
12-28-2004, 09:02 AM
PERM Central
PERM is now finally and officially here (69 FR 77326, Dec 27, 2004). The rule will be effective as of March 28, 2005, i.e. 90 days from today.
There are many points to ponder in the PERM rule (we have identified a several dozen already!) some of which we will explore in future issues. One such point concerns the new 20 CFR 656.17(d) "Refiling Procedures" a.k.a. upgrading to PERM. While that subsection is straightforward in that applications for which a job order has already been issued under the old regs cannot be upgraded to PERM, the situation at 20 CFR 656.17(d)(1)(i) and 20 CFR 656.17(d)(1)(ii) is considerably less clear. 20 CFR 656.17(d)(1)(ii) implies that an attempt to upgrade an existing case to PERM will result in the loss of priority date at the DOL's discretion. Actual experience over the first 3 to 6 months of the PERM program may well show that DOL will exercise this newly acquired regulatory power reasonably and not force a loss of priority date in non-fraudulent cases. However, until more is known on how DOL intends to handle this issue, attorneys may want to advise their clients that upgrading to PERM could result in a loss of priority date.
PERM is now finally and officially here (69 FR 77326, Dec 27, 2004). The rule will be effective as of March 28, 2005, i.e. 90 days from today.
There are many points to ponder in the PERM rule (we have identified a several dozen already!) some of which we will explore in future issues. One such point concerns the new 20 CFR 656.17(d) "Refiling Procedures" a.k.a. upgrading to PERM. While that subsection is straightforward in that applications for which a job order has already been issued under the old regs cannot be upgraded to PERM, the situation at 20 CFR 656.17(d)(1)(i) and 20 CFR 656.17(d)(1)(ii) is considerably less clear. 20 CFR 656.17(d)(1)(ii) implies that an attempt to upgrade an existing case to PERM will result in the loss of priority date at the DOL's discretion. Actual experience over the first 3 to 6 months of the PERM program may well show that DOL will exercise this newly acquired regulatory power reasonably and not force a loss of priority date in non-fraudulent cases. However, until more is known on how DOL intends to handle this issue, attorneys may want to advise their clients that upgrading to PERM could result in a loss of priority date.