On December 10, 2004, the Office of Management and Budget (OMB) completed its review of the U.S. Department of Labor's (DOL) long-awaited new labor certification regulations, known as Program Review Electronic Management, (PERM).  This rule had been pending at OMB since February 23, 2004.  OMB has now returned the cleared regulations to DOL for final review and publication.  In a September 2004 memo to the State Workforce Agencies, DOL announced their intention to publish PERM during calendar year 2004, so it is likely that PERM will be published before the end of December.  The same DOL memo advised that PERM would take effect 60 days after publication.  This would mean that PERM would go into effect no later than March 1, 2005, and possibly as early as late February.

Once the PERM program goes into effect, all labor certification applications must be filed under the PERM rules.  Cases filed under the existing regulations (i.e., RIR and non-RIR applications) will be processed to completion, but no new cases will be accepted under the existing regulations after PERM becomes effective.

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 once the system is up and running, so it may be difficult to file applications under PERM in the early stages of the new program.  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 employers to identify individuals for whom employers may wish to file a labor certification before PERM goes into effect. Given the time frames involved, employers may not be able to gather sufficient recruitment materials to qualify for RIR and may need to file non-RIR applications instead.  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 a labor certification application for an employee as individual employees cannot elect to file these applications without the consent of the sponsoring employer.

Jackson & Hertogs continues to monitor the development of the PERM regulations, and will update clients as more information becomes available.

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