On February 23, 2004, the U.S. Department of Labor (DOL) sent the final new labor certification system (PERM) regulation to the Office of Management and Budget (OMB) for review.  OMB has up to 90 days to review the regulation and either return it to DOL for further work or send it to the Federal Register for publication.  DOL has indicated that the PERM regulation will take effect 120 days after publication.

Once the PERM regulation goes into effect, no new labor certifications may be filed under the existing regulations.  This means that employers have 210 days from 2/23/04 to file labor certifications using the current systems (i.e., current RIR and non-RIR processes will cease to be available options for submission).  If OMB completes its review in less than 90 days, there will be less than 210 days to file applications using the current systems.  While it is possible that OMB will return the regulation to DOL for further revision, they may accept it and send to the Federal Register for publication.

The automated PERM system holds the promise of expedited processing of labor certifications; however, the proposed regulation published in May 2002 included several provisions that employers may find objectionable.  Until the final rule is published, we will not know if DOL has changed these provisions from the original proposal.  It is also uncertain how well the PERM software will work, so it may be difficult to file applications under PERM when the system begins operating.  This could have an adverse effect on individuals who need proof of filing a labor certification to ensure eligibility for extensions of H-1B stay beyond the initial six years. 

Jackson & Hertogs is reviewing cases with employer clients to identify individuals for whom employers may wish to file a labor certification before PERM goes into effect later this year.  We will contact corporate clients to discuss these cases as needed.  Please keep in mind that it is ultimately up to the employer to decide if it wants to file an application for any employees and individual employees cannot decide to file these applications without the consent of the employer.

For a more detailed discussion of the proposed PERM regulations and a comparison between PERM and the current labor certification process, please refer to our June 2002 issue of Immigration Spotlight. 

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