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On December 27, 2004, U.S. Department of Labor, Employment and Training Administration, has published a new regulation on implementation of new system (PERM), which amends the processing of labor certification for the permanent employment of foreign workers in the U.S.

PERM stands for the "Program Electronic Review Management" system.  The effective date of this new regulation is March 28, 2005.  In a meantime, employers may continue to submit labor certification based on regular and RIR processing. Pending applications which are not withdrawn after the effective date will continue to be processed under the current rules in backlog reduction centers and regional offices.

Current state processing times in reviewing a RIR labor certification is more than 3 years in New York state and 2 and a half years in New Jersey state.  Under the new PERM regulation, DOL anticipate an electronically filed application not selected for audit will have a computer-generated decision within 45 to 60 days of the date the application was initially filed.

Labor certification will be certified if the U.S. Department of Labor finds that (a) there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of the application for a visa and admission into the U.S. at the place where the alien is to perform the work, and (b) the employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers.

PERM system requires employers to conduct following recruitment steps between 30 and 180 days before filing their application:

(1)   Posting: The employer has to post notice of job opportunity inside the office for 10 consecutive business days;

(2)   In house media: electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization. Duration can be as long as other comparable positions are posted.

(3)   Job Order: The employer must place a job order with the SWA serving the area of intended employment for a period of 30 days;

(4)   Advertisements: The employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation. If the job requires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may place an advertisement in the professional journal in lieu of one of the Sunday advertisements;

(5)   Additional Recruitment for Professional Occupations: The employer must select three additional recruitment steps from the following lists to meet the recruitment requirements for professional occupations. (a) job fairs; (b) employer’s website; (c) job search website other than the employer’s; (d) on-campus recruiting; (e) trade or professional organizations; (f) private employment firms; (g) employee referral program with incentives; (h) campus placement offices; (i) local and ethnic newspapers; and (j) radio and television advertisements. Professional occupation means an occupation for which the attainment of a bachelor’s or higher degree is a usual education requirement.

The employer must document a recruitment report, describing the recruitment steps undertaken and the results achieved, the number of hires, the number of US workers rejected, summarized by the lawful job-related reasons for such rejections.  It is not required to submit any documentation with its application, but supporting documents must be retained for five years from date of filing.

The employer will be required to provide the supporting documentation in the event its application is selected for audit and as otherwise requested by a Certifying Officer.  If the employer does not submit a timely response, within 30 days, to the audit letter, the application will be denied. At the discretion of the CO, the employer may also be required to conduct supervised recruitment for any future labor certification filings for up to 2 years.

The Certifying Officer has authority to order supervised recruitment, and the Certifying Officer may also order supervised recruitment for the employer’s job opportunity either after receipt of an audit response or as part of the mandated supervised recruitment. The employer will be advised to release an advertisement in a newspaper of general circulation for three days including a Sunday or for one edition of a professional, ethnic or trade publication.  At the completion of the supervised recruitment effort, the employer will be required to document in a recruitment report and the outcome of such effort. Upon review of the documentation, the CO will either certify or deny the application.

Employers that filed applications prior to March 28, 2005 may refile such applications without loss of the original filing date, if a job order has not been placed, and when (1) such application is re-filed under PERM rules within 210 days of the request for withdrawal of previous application, and (2) the refiled application is for the identical job opportunity. A job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements, and job description are the same as those stated in the original application filed prior to PERM effective date.  All re-filed cases must comply with all the requirements of the new PERM final rules.

The wage offered on the application form must be equal to or greater than the prevailing wage determination provided by the SWA. Before filing the application, the employer will be required to obtain prevailing wage determinations from the SWA.

An employer must demonstrate the job requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform, in a reasonable manner, the job duties as described by the employer. Foreign language cannot be included as a job requirement unless it is justified by business necessity.

E-MAIL TO MARI MAEMOTO ESQ. AT legalpad@spinhan.com WITH ANY QUESTIONS