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      On December 27, 2004, the U.S. Department of Labor ("DOL") published new permanent labor certification application regulations. These regulations implement DOL's long anticipated Program Review Electronic Management ("PERM") system. PERM introduces electronic filing of a simpler, attestation-based form, and has raised the expectations of both employers and individuals that the lengthy processing times at DOL will finally be improved. The PERM regulations are effective on March 28, 2005.
     DOL's stated goal is to process PERM Alien Employment Certification ("AEC") cases within 45 to 60 days. Theoretically, if DOL meets its projected PERM processing time, an individual could file a PERM AEC, then file the I-140 Immigrant Visa Petition and I-485 Adjustment of Status Petition a mere two months later. If the U.S. Citizenship and Immigration Services (USCIS) meets its target to process I-485s in 6 months, that same individual could become a permanent resident within 9 months of filing the PERM AEC!

PERM application process
     The PERM filing system is similar to the reduction in recruitment ("RIR") program, in that it relies on recruitment in advance of filing the application. However, PERM is an attestation-based system, and no documentation of the recruitment or any other documentation is submitted to DOL when the PERM application is filed; but documentation must be maintained in case it is later requested. To qualify for labor certification under the PERM program:

The employer must obtain a prevailing wage determination (PWD) from a State Workforce Agency (SWA) and it must be valid when the PERM case is filed with DOL.
The employer must complete the necessary recruitment steps during the 180 days prior to filing the application with DOL.
The employer may file the application either electronically or by mail with DOL. Only the DOL form must be filed; no supporting documentation is submitted with the original application.
After initial automated review of the form, DOL will either certify, deny, or issue an audit letter on the application.
Following certification, the employer and alien must immediately sign the certified AEC to validate it.
Employers must maintain supporting documentation for the AEC for a period of five years.

Prevailing wage under PERM
     PERM requires employers to offer at least 100% of the prevailing wage rate for the position being certified. This is a change from the existing regulations, which require an employer to offer at least 95% of the prevailing wage rate. Prior to filing the PERM application with DOL, the employer must obtain a prevailing wage determination (PWD) from the appropriate State Workforce Agency (SWA) documenting the prevailing wage rate for the position on the PERM application. PWDs will be valid for at least 90 days, and for not more than 365 days, after they are issued.
     The employer may appeal a SWA's PWD to the DOL Certifying Officer (CO). The CO may affirm the PWD, modify the PWD to reflect the employer's alternate wage source, or remand the PWD for further review. Employers may appeal a CO's decision on a PWD to BALCA (Board of Alien Labor Certification Appeals). There is no specified time for processing PWD appeals.

Job requirements under PERM
     Generally, PERM specifies that the employer's job requirements on the AEC application must not exceed the Standard Vocation Preparation (SVP) level for the occupation as defined by DOL. PERM specifies that DOL use the Standard Occupational Codes (SOC) to determine the maximum amount of education, experience and training to be required. If the employer's requirements are within the SVP for the occupation, DOL presumes they are normal for the occupation. Employers can include requirements that exceed the SVP, if the employer can document that such requirements are justified by business necessity. Doing so requires demonstrating that the minimum requirements are bona fide, bear a reasonable relationship to the occupation, and that the requirements are essential to perform the job in a reasonable manner. Employers may include a foreign language requirement if warranted by business necessity, such as conversing with clients.
     Employers may not require unique employment experience or skills as a screening requirement for U.S. workers if the beneficiary only gained such skills while working for that employer. The beneficiary can only demonstrate qualifications for a position using experience gained from the sponsoring employer if that experience was gained in a position substantially dissimilar to the position for which certification is sought. PERM defines the "same" employer as having the same Federal Employer Identification Number (FEIN), so experience gained by the beneficiary while working for an overseas affiliate of a U.S. employer would appear to be acceptable.

Recruitment under PERM
     PERM requires that the employer complete all of the required recruitment steps during the 180 days prior to filing the application with DOL. DOL requires "professional" positions to complete additional recruitment steps. Generally, a "professional" occupation is one in which completion of at least a Bachelor's degree is normally required for entry into the field. The "mandatory" recruitment steps for all PERM AECs must take place at least 30, but no more than 180, days before filing the application with DOL.

Mandatory recruitment steps for all PERM cases
     The following three recruitments steps are required for all PERM cases.

Published newspaper advertisements. Employers must run advertisements on two different Sundays (i.e., at least one week apart) in the "classifieds" section of a newspaper of general circulation in the area of intended employment. If a professional journal is normally used to recruit for the occupation, the employer may place an advertisement in a professional or trade journal of national circulation, in lieu of one of the two newspaper ads. Advertisements must (1) identify the employer, (2) provide instructions on how applicants may apply for the position, (3) provide enough information about the job opportunity to apprise applicants of the nature of the job opportunity, and (4) indicate the geographic area of employment.
Job Order. The employer must place a 30 day job order with the State Workforce Agency serving the area of intended employment. The start and end dates of the job order must be disclosed on the PERM application.
Notice of filing an application for labor certification. The employer must provide notice to its employees that it is filing an AEC application for the job opportunity. If the occupation is unionized, the formal AEC Notice must be provided to the bargaining representative. If there is no bargaining representative, the Notice must be posted at the employer's worksite in a conspicuous location for ten (10) consecutive business days. In addition, the employer must distribute the Notice through "any and all in-house media" normally used by the employer to recruit for similar positions.

Additional recruitment steps for professional occupations
PERM requires that employers sponsoring individuals in professional occupations complete at least three (3) different additional steps from the following list of 10 possible recruitment steps. All three steps must be completed no more than 180 days before the application is filed with DOL. However, only one of the three steps may take place during the 30 day period immediately prior to filing. The list of 10 recruitment steps follow below:

Job Fairs
Employer's Website
External Website Advertising
On-Campus Recruiting
Trade or professional organizations
Private employment firms
Employee Referral Program with incentives
Campus placement offices
Local and ethnic newspapers
Radio and television advertisements

Preparing recruitment results
     In addition to completing the mandatory recruitment regimen, employers must document the results of the recruitment to demonstrate that the employer was unable to locate any qualified U.S. workers for the offered position. "U.S. worker" is defined as any individual who possesses permanent, unrestricted authorization to work in the United States, and includes U.S. citizens, permanent residents, asylees and refugees.
     PERM does not require employers to provide individual recruitment results for each and every applicant to the job. However, PERM does require employers to prepare a summary recruitment report that describes the recruitment conducted, and the numbers of U.S. workers rejected, categorized by the specific lawful reason for rejection. The DOL reserves the right to request resumes of applicants.
     When considering applicants for the offered position, the employer must consider the applicants only against the specified requirements for the job opportunity, such as the minimum educational degree, years of employment experience, specific job-related skills and knowledge (e.g., programming languages). If certain job-related skills could be learned during a "reasonable" period of on-the-job (OTJ) training, candidates lacking those skills must be considered qualified for the job opportunity. If an applicant was disqualified for lacking a skill that may be readily acquired, the employer may be asked to document and explain why this skill could not have been acquired through OTJ training, and prove that the employer does not hire individuals who lack this particular skill. PERM does not consider the minimum educational and experience requirements for the application to be OTJ skills.
     The PERM regulations bar the alien beneficiary and the beneficiary's representative from any consideration of applicants to the job opportunity.

Other PERM issues: Layoffs & alien involvement
     The PERM form includes an attestation that asks whether the employer has laid off any employees in the occupation, or in a related occupation, within the past six months. If the employer has laid off workers in the occupation within the past six months, the employer must attest whether it contacted and considered these workers for the job on the AEC application. For some employers, a layoff may mean that a PERM application cannot be filed until six months after the date of the layoff.
     DOL has long been concerned about the bona fides of a job opportunity if the alien is a key employee of the employer, is related to the employer, or is so closely involved with the employer that it is unlikely that the sponsored position would be truly "open" to U.S. workers. DOL has added specific disclosures to the PERM application for employers that are closely held corporations, partnerships, or have few employees. Further, if the alien beneficiary is one of 10 or fewer employees, the employer must disclose any family relationship between the employees and the beneficiary. It seems likely that these employers may be issued audit letters to confirm that a bona fide job opportunity exists.
     Finally, as in the current AEC process, the foreign national employee cannot be involved in the recruitment process in any manner. S/he cannot participate in reviewing resumes or interviewing candidates.

What happens to PERM AECs after filing
     DOL intends to process PERM applications filed electronically within 45-60 days. PERM applications submitted by mail will be processed more slowly, as DOL will need to input these into the automated system before any action may be taken.
     The initial review and intake of the PERM application will be completed by an automated system at DOL. If the application passes certain validation checks and all parts of the application are complete, most cases will then be certified. DOL has estimated that between 10-20% of all PERM cases will be issued audit letters. Some of the audit letters will be based on selection factors determined by DOL (targeted audits), others will be sent out for quality control purposes (random audits). Generally, the audit letters will be designed to verify the recruitment, wage, and other information the employer has attested to on the application. Under the PERM regulations, employers are required to maintain documentation of unsuccessful recruitment of qualified, willing, available U.S. workers, prevailing wage, and notice for five years from the date of filing.
     If the employer does not respond to the audit letter within the 30 day time-limit, the case will be automatically denied. The employer may request one 30 day extension of the due date on the audit letter, but DOL is not required to grant the extension unless "good cause" is shown. After responding to an audit letter, DOL may certify, deny, or instruct the employer to complete additional recruitment that will be supervised by DOL.
     Under the PERM regulations, DOL may revoke an approved PERM application at any time after certification. This measure appears to be designed to give DOL the power to revoke applications that may have been approved in error, such as due to a software malfunction, or to revoke applications where DOL later discovers fraud or misrepresentation. If DOL chooses to revoke an approved PERM application, the employer will be given 30 days to respond, and document why the approval should not be revoked. The employer may appeal a decision to revoke to BALCA.

"Conversion" of previously filed AEC applications to PERM
     Many employers and foreign nationals have hoped to convert their pending AECs to the PERM system. Ideally, this would let applicants keep an older priority date, but complete AEC processing on PERM's 45 to 60 day schedule. Instead of "conversion" of pending cases, the PERM regulations allow the employer to withdraw a pending AEC application, then re-file an "identical" PERM application and retain the priority date from the original AEC application. The priority date is the date the application was initially received by the SWA or DOL. PERM defines an "identical" case as having the same employer, beneficiary, job title, job duties and job requirements as on the original AEC filing. If DOL determines that the re-filed case is not identical to the original withdrawn AEC, the case will be assigned a new priority date, based on the date the PERM application was submitted to DOL. Employers cannot appeal a decision by DOL not to retain an original priority date.
     Retention of an early priority date may be critical for persons who may be subject to priority date retrogression, such as individuals born in India, China or the Philippines. The State Department's January 2005 Visa Bulletin established backlogs in the Employment-Based Third Preference (EB3) category for individuals born in India, China and the Philippines. It is possible that other countries may see backlogs in the future. The priority date determines whether an individual is eligible to proceed to the final stage of the green card process, either via adjustment of status in the United States, or consular processing at a U.S. Embassy or Consulate. For this reason, it would not be prudent to withdraw all pending AECs to re-file under PERM, because of the risk of losing the priority date should DOL deem the new PERM case not "identical" to the original AEC.
     On a final note regarding "conversion", the CIS has been silent as to how they will treat cases where the original AEC is withdrawn in order to re-file the identical case under PERM. While the DOL has indicated that the Employer would be able to capture the earlier priority date, the CIS has neither confirmed nor denied that they will adhere to this promise. Until such confirmation is issued by the CIS it would be unwise to withdraw any pending AEC where the priority date is key to enabling extensions beyond the sixth year of H-1B stay under the DOJ Appropriations Act which added to the American Competitiveness Act of the 21st Century which allows employers to extend individuals beyond the normal H-1B six-year limit when a labor certification is filed at least before the end of the fifth year of stay and either remains pending with the DOL or an immigrant visa petition or adjustment of status application remains pending with the CIS.

Processing of pending AECs after PERM is implemented
     All AECs filed under the existing regulations will be processed under those regulations until completion, unless the employer withdraws the pending AEC. DOL has created two Backlog Processing Centers (BPCs) that will handle pending AECs. Please refer to the discussion above for more details. These AEC applications will be worked on a separate processing track from the PERM cases, and will not be expedited or worked ahead of PERM cases filed later this year. DOL expects that many of the pending AECs will be withdrawn, as employers choose to "convert" these cases to the new PERM system. If this happens as expected, this may create significant improvements in the AEC processing times.

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