Beginning March 28, 2005, the new labor certification system, PERM (Program Electronic Review Management) will be implemented. This new system combines and changes two (2) previous systems, Traditional and RIR (Reduction-In-Recruitment) labor certifications.
The Regulations clearly state that the first step in the PERM process will be to obtain a Prevailing Wage Determination (the “PWD”) from the State Workforce Agency (the “SWA”) (e.g. The California Employment Development Department) in the State where the position has been offered to the prospective employee. It is important to note that the PWD area of the law is constantly evolving. Once the PWD is obtained, the organization must undertake a “recruitment process”. The recruitment process consists of placing a job order with the SWA and placing two (2) Sunday advertisements in an appropriate newspaper. The recruitment process needs to be completed within six (6) months of the filing of the Labor Certification. Furthermore, the Labor Certification cannot be filed until thirty (30) days have passed from the last recruitment effort. This, the PERM Regulations point out, allows an optimal period of time for the recruitment process to attract able, willing and qualified U.S. workers.
If the position being offered is one that is “professional” in nature, then there are two additional steps that must be taken in the recruitment process under the PERM Regulations. Once the recruitment process is complete, a document must be created that accurately explains the specific job related reasons for rejecting U.S. workers. Once the PERM requirements are met, a PERM Labor Certification can be filed either electronically or by mail with the DOL. If the case is worthy of immediate certification, the DOL should respond within forty-five (45) to sixty (60) days. If the Labor Certification is certified, the certification will be sent by mail. If the case is not certified, the DOL will send an audit letter requesting additional information. Applicants will be given thirty (30) days to respond to the audit letter.
The PERM process requires meticulous preparation and a thorough understanding of the PERM Regulations. The biggest advantage of PERM is that the DOL is promising a sixty (60) day turnaround time for a Labor Certification (that is not audited). The implementation of PERM presents a window of opportunity for foreign nationals seeking lawful permanent residence (“green cards”) in the United States. The U.S. Department of State (“DOS”) Visa Bulletin for January, 2005 reports that immigrant visa numbers have retrogressed for India, China, and the Philippines. After March 28th, 2005, as the PERM process is utilized, the Labor Certification approval process will increase and what is likely to happen is that more cases will move more quickly into the I-140 (Petition For An Alien Worker) phase of the Labor Certification process, and as a result, immigrant numbers will retrogress in the EB-3, skilled worker and professional categories.