Lev Kobrin
02-07-2005, 08:25 AM
PERM: Think You Understand It? Better Think Again!
I attended a presentation about the new PERM system at an AILA Conference in Mexico a couple of weeks ago. When it was all over, I found that I had more questions after the conference was over than I did when the conference began.
Then, on January 23, several members of our staff attended a PERM seminar given by the Labor Department. Although they thought the conference was valuable, they returned with a great number of unanswered questions about PERM.
However, like it or not, PERM will be the only game in town come March 28, 2005. On that date, the Department of Labor (DOL) will no longer accept RIR or regularly-filed applications for alien labor certification.
The PERM basics are easy to understand. An employer wishing to sponsor a foreign-born worker must obtain a prevailing wage determination from the State Workforce Agency and recruit for the job (two Sunday newspaper ads, etc., etc.) according to criteria enumerated in the PERM regulations. Then, starting on March 28, the employer can complete a ten-page form (ETA-9089) online, and the Labor Department will issue the labor certification in 45 to 60 days. The DOL will audit a certain number of PERM applications.
No fees, no documentation to submit, and most importantly, no two to three-year wait. Sounds too good to be true, doesn't it?
Maybe it's just the cynic in me, but when something sounds too good to be true, I find that it usually is.
Today, immigration lawyers are nervously talking among themselves, wondering how easy it is going to be to transform an existing application for labor certification into a PERM application. The regulations state that if you withdraw an existing labor certification and submit an "identical" PERM application within 210 days, you can keep your existing priority date which is especially important for EB-3 (professionals and skilled workers) applicants born in India, China and the Philippines for whom the visa numbers have retrogressed over three years during the past two months.
What is "identical"? Bill Carlson of DOL told us in Mexico that if an employer with a pending labor certification moved across the street, then tried to re-file under PERM, the two applications would not be identical since the employer's address had changed. This instantly provoked a lot of speculation among the attorneys present. If the application was re-filed under PERM with one minor change, we could probably keep the priority date without having to withdraw the first labor certification, while at the same time, getting a "second bite of the apple" under PERM. Will this strategy work? Time will tell.
Underlying this speculation is anxiety about how difficult it will be to obtain the approval of a labor certification under PERM. When labor certification guru Josie Gonzalez pointed out that under DOL's "job zones", an employer applying under PERM for an attorney could not require a Juris Doctor degree, Carlson replied that a DOL task force was looking into this matter. A lot of attorneys in the room made a note of this.
The bottom line is that no one really knows how, or even if, PERM will work, not even the Labor Department.
Even though the PERM regulations, published in December 2004, maintain that there will be four wage levels, when DOL updated its OES (Occupational Employment Statistics) wage data on its web site on January 14, 2005 at
http://www.flcdatacenter.com/OesWizardStart.aspx
there were still only two wage levels.
Possible doomsday scenario: DOL will be flooded with labor certifications of questionable validity. Thousands of audits will be triggered, and adjudication times will begin to slow until, eventually, the backlogs are longer than they are today.
Let's hope that I am being overly pessimistic. Remember that I am one of those "old-timers" who can remember when we could get H-1s and L-1s approved in one day, when naturalization applications cost only $15 and adjustment applications took 90 days or less to be approved.
Maybe PERM is the great advance, maybe not. My best advice is that if you are thinking of submitting your labor certification under PERM, you do so before huge lines have a chance to develop, maybe sometime this spring, maybe even on March 28th. On the other hand, if you have been in H-1B status for more than six years, and your application for a labor certification has been pending for over a year, perhaps it's better not to file for PERM.
I attended a presentation about the new PERM system at an AILA Conference in Mexico a couple of weeks ago. When it was all over, I found that I had more questions after the conference was over than I did when the conference began.
Then, on January 23, several members of our staff attended a PERM seminar given by the Labor Department. Although they thought the conference was valuable, they returned with a great number of unanswered questions about PERM.
However, like it or not, PERM will be the only game in town come March 28, 2005. On that date, the Department of Labor (DOL) will no longer accept RIR or regularly-filed applications for alien labor certification.
The PERM basics are easy to understand. An employer wishing to sponsor a foreign-born worker must obtain a prevailing wage determination from the State Workforce Agency and recruit for the job (two Sunday newspaper ads, etc., etc.) according to criteria enumerated in the PERM regulations. Then, starting on March 28, the employer can complete a ten-page form (ETA-9089) online, and the Labor Department will issue the labor certification in 45 to 60 days. The DOL will audit a certain number of PERM applications.
No fees, no documentation to submit, and most importantly, no two to three-year wait. Sounds too good to be true, doesn't it?
Maybe it's just the cynic in me, but when something sounds too good to be true, I find that it usually is.
Today, immigration lawyers are nervously talking among themselves, wondering how easy it is going to be to transform an existing application for labor certification into a PERM application. The regulations state that if you withdraw an existing labor certification and submit an "identical" PERM application within 210 days, you can keep your existing priority date which is especially important for EB-3 (professionals and skilled workers) applicants born in India, China and the Philippines for whom the visa numbers have retrogressed over three years during the past two months.
What is "identical"? Bill Carlson of DOL told us in Mexico that if an employer with a pending labor certification moved across the street, then tried to re-file under PERM, the two applications would not be identical since the employer's address had changed. This instantly provoked a lot of speculation among the attorneys present. If the application was re-filed under PERM with one minor change, we could probably keep the priority date without having to withdraw the first labor certification, while at the same time, getting a "second bite of the apple" under PERM. Will this strategy work? Time will tell.
Underlying this speculation is anxiety about how difficult it will be to obtain the approval of a labor certification under PERM. When labor certification guru Josie Gonzalez pointed out that under DOL's "job zones", an employer applying under PERM for an attorney could not require a Juris Doctor degree, Carlson replied that a DOL task force was looking into this matter. A lot of attorneys in the room made a note of this.
The bottom line is that no one really knows how, or even if, PERM will work, not even the Labor Department.
Even though the PERM regulations, published in December 2004, maintain that there will be four wage levels, when DOL updated its OES (Occupational Employment Statistics) wage data on its web site on January 14, 2005 at
http://www.flcdatacenter.com/OesWizardStart.aspx
there were still only two wage levels.
Possible doomsday scenario: DOL will be flooded with labor certifications of questionable validity. Thousands of audits will be triggered, and adjudication times will begin to slow until, eventually, the backlogs are longer than they are today.
Let's hope that I am being overly pessimistic. Remember that I am one of those "old-timers" who can remember when we could get H-1s and L-1s approved in one day, when naturalization applications cost only $15 and adjustment applications took 90 days or less to be approved.
Maybe PERM is the great advance, maybe not. My best advice is that if you are thinking of submitting your labor certification under PERM, you do so before huge lines have a chance to develop, maybe sometime this spring, maybe even on March 28th. On the other hand, if you have been in H-1B status for more than six years, and your application for a labor certification has been pending for over a year, perhaps it's better not to file for PERM.