The long awaited Program Electronic Review Management (“PERM”) rule for filing an employment based petition for green cards went into effect on March 28, 2005. PERM is a new methodology to file for labor certifications, replacing the earlier traditional and Reduction in Recruitment methods. Labor certification is the first of three steps to acquire a green card through the employment route.

The good news

Labor certification applications filed under the PERM rule are expected to only take an estimated 45 to 60 days to adjudicate.  Another advantage is that the PERM rule takes a liberal view in that it allows consideration of experience with the “same employer” so long as such experience gained is not “substantially comparable” to the job for which the labor certification is being sought.

Another liberal interpretation by the PERM rule is the definition of “same employer.”  Under the PERM rule, “same employer” means the employer with the same Federal Employer Identification Number (“FEIN”).  Therefore, foreign workers who work for overseas parent or subsidiary companies of U.S. companies may be able to use the experience gained from such employment if the FEIN of the employers is not same. 

The not so good news 

There is a provision for random audits of some cases, which will be selected by Department of Labor (“DOL”) personnel.  Cases for audits are (a) randomly selected by DOL’s computer system or (b) triggered by certain responses from employers on the PERM application.  Some examples of possible red flags that may trigger an audit include: experience gained with same employer, business necessity and foreign language requirements.

In addition, the PERM rule requires that all alien labor certification applications filed on or after March 8, 2005 must meet 100% of DOL’s prevailing wage requirement for the job occupation, rather than the more flexible standard today. 

Risks Involved in the PERM Process

It is important to note that an application certified under the PERM rule is subject to revocation at anytime by the Certifying Officer of DOL.  A Certifying Officer may revoke a certified petition if he or she believes that such labor certification should not have been granted.  Therefore, there is a possibility of revocation of the green card after the foreign worker has received it.

Although a pending case cannot be converted to take advantage of the PERM rule, the regulations discuss the withdrawal and re-filing of pending cases.  However, it is too early to determine if a given case could be withdrawn and successfully re-filed under the PERM rule without losing the original filing date (priority date).  A priority date is important especially in light of the current EB-3 retrogression and non-availability of visa numbers.  According to the PERM rule, a pending case could be withdrawn and re-filed without losing the priority date as long as (a) no job order has been placed with the State Workforce Agency (“SWA”) and (b) the employer, alien worker, job title, job duties, job requirements and work location are identical.  “Identical” means the case to be re-filed is identical to the pending case in terms of employer, foreign national, job requirements, job title, job location and job description.

When filing an application under the PERM rule, employers are required to answer “yes” or “no” to the question “Are you seeking to utilize the filing date from a previously submitted Application for Alien Labor Certification (ETA-750)?”  If an employer answers “yes”, the following takes place: (a) the previously filed application will be withdrawn and (b) DOL will determine whether the new application filed under the PERM rule is identical to the previously filed application.  If the re-filed application is determined not to be identical to the original application, the re-filed application will be processed using the new filing date, and the original application will be treated as withdrawn.  However, if the employer answers “no” to the question, the rule appears to indicate that the previously filed application would not be withdrawn, allowing the two applications to continue processing.
 
Real World Recruitment Efforts

The PERM rule requires that the pre-filing recruitment should not begin more than 180 days prior to the filing of the application and should end 30 days prior to the filing of the application.

Employers will be required to place at least two advertisements on two different Sundays in the newspaper.  The ads may be placed on two consecutive Sundays and must contain the name of the employer, geographic area of employment, a job description specific enough to apprise U.S. workers of the job opportunity and direct applicants to send resumes or report to the employer, as appropriate.  The employer need not include the salary in the ad.  However, if the employer chooses to include the salary in the ad, the salary stated must meet or exceed 100% of DOL’s prevailing wage requirement for the job occupation.

For professional positions, the PERM rule requires that employers follow at least three different additional recruitment steps from the following ten steps: (1) job fairs, (2) the employer’s website, (3) a job search website other than the employer’s (includes America’s Job Bank, internet ads placed in conjunction with newspaper ads and job search websites such as monster.com or hotjobs.com), (4) on-campus recruiting, (5) trade or professional organizations, (6) private employment firms, (7) an employee referral program, if it includes identifiable incentives, (8) notice of job opening at a campus placement office, if the job requires a degree but no experience, (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity, and (10) radio and television ads.

Employers will also be required to place a job order with the SWA for a period of 30 days. In addition, the employer must post notice of the job opportunity for at least 10 consecutive business days and the notice must contain the salary. 

The PERM rule also requires employers to use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar position in the organization. 

Furthermore, employers will be required to consider workers it has laid-off in the six months immediately prior to the filing of the application under the PERM rule. 

In its recruiting process, employers should note that if a U.S. worker lacks a skill that may be acquired during a reasonable period of on-the-job training, but otherwise qualifies for the job, the PERM rule provides that the lack of that skill is not a lawful basis for rejecting the U.S. worker.

Practical Considerations

Further guidance from DOL is expected on the PERM rule.  Until such guidance is released, it is prudent to wait and observe how the PERM process unfolds in the months after March 28, 2005.  Given the visa backlog situation and other factors, it may still be advisable at this time to move ahead on filing cases via traditional or RIR processing due to specific timing and eligibility issues.  In particular, additional consideration should be given to visa number retrogression in the third employment-based visa preference category and uncertainties regarding the effect of PERM re-filings on extensions of H-1B classification past the sixth year.

Now that the PERM rule has been published, employers may wish to begin advance preparation for the implementation of the new system and conduct recruitment with an eye toward filing new cases under the PERM rule.  Until clearly defined interpretations of DOL are available, employers should use great caution in analyzing all implications of withdrawing and re-filing pending cases under the PERM rule. 

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