Perm is here – Labor Certification can now be expedited
For the past few years, labor certification has taken an unreasonably long period of time to process.
Currently, in New York, applicants who filed labor certifications in April 2001 are now just having their cases processed. Those who filed RIR (the expedited labor certification) are only faring a little better; for RIR, the Department of Labor (DOL) is processing cases filed in October 2001. In both instances, it is taking the DOL more than 4 years to process labor applications. It is estimated that people who have not yet been processed may wait even longer for their labor certification to be approved.
As background, a labor certification is one of the avenues which allow an employer to hire an alien to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the U.S. Citizenship and Immigration Services (CIS), the employer must obtain an approved labor certification. The Department of Labor (DOL) must certify to the CIS that there are no qualified U.S. workers available and willing to accept the job at the prevailing wage for that occupation in the area of intended employment. The date the labor certification application is filed with the DOL is known as the priority date. After the labor certification application is approved by the DOL, it is submitted to the CIS service center with an I-140, Immigrant Petition for Alien Worker. In order to be labor certified, the employer must hire the foreign worker as a full-time employee; there must be a bona fide job opening; the job requirements may not be tailored to the worker's qualifications; the job opportunity cannot be described without unduly restrictive requirements; and, the employer must pay at least the prevailing wage for the occupation in the area of intended employment.
On March 28, 2005 the DOL will unveil PERM, their new processing procedure for Labor Certification. Under the PERM procedures, the employer will only have to submit a labor application and will no longer have to submit any documents in support of the application. Rather, the employer will be required to keep the documents in a safe place for five years. Like the IRS, the DOL will pick a small group of employers randomly and/or because of a deficiency in the application to audit to ensure that a negative labor market test and other labor application requirements (discussed below) were performed. The DOL believes that this procedure will be more efficient. As a result, the DOL believes that PERM applications can be approved in just a matter of months, rather than the four plus years it is taking under the old RIR system.
RIR applications will no longer be accepted under PERM, other than those filed prior to March 28, 2005. RIR and regular processing cases that have been filed prior to March 28, 2005 can be converted to the new PERM procedures without losing the employee’s priority date.
The main difference between PERM and RIR, other than a new and longer Labor Application Form, is the required recruitment process. Under RIR, an employer would be required to show a good faith effort to recruit a U.S. worker by placing ads in local newspapers, trade magazines and over the internet. Under RIR, there was no specific requirement on the number of ads placed; each case was individually reviewed based on labor market statistics and the perceived good faith of the employer.
Under PERM, an employer will be required to place a job order with their local state labor department for a 30 day period. Those who are applying for unemployment and others looking for a job with the help of the local state labor department can apply directly to the employer for a job. The employer will also be required to run two days of ads in a local newspaper. If the job is for a professional worker, additional recruitment steps would be mandated.
Under PERM, the employer is not under any obligation to hire any U.S. worker who may apply for the job.
On the new labor application, the employer does state that no qualified U.S. workers applied for the job. If the employer gets audited, in order to obtain labor certification, the employer must demonstrate to the DOL that every U.S. worker who did apply for the job was not qualified for the position. Otherwise, the labor application will be denied.
There are no penalties (except for outright fraud) to the employer throughout the PERM process, even if it is determined that qualified U.S. workers applied for the job. Further, should the employer not wish to precede through the audit process, the only penalty other than denial of the labor certification, is that the employer will be audited for the next two years should he/she file a new labor application.