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The U.S. Department of Labor's (DOL)
new PERM program for labor certifications officially
went into effect on March 28, 2005. DOL planned to begin
accepting online filings under the new Program
Electronic Review Management (PERM) system on that date.
Unfortunately, most of the early feedback on PERM has
been less than favorable.
While PERM opened up a new era in labor certification
processing, initial attempts at using DOL's online
system have been met with frustration by those hoping to
file their PERM labor certification applications on, or
near, the first day of processing. To date, no one in
the immigration bar has reported any successfully filed
labor certification applications under PERM. Most
problems appear to stem from technical malfunctions of
the online system, or from the failure of early filers
to properly follow the specific rules of the new PERM
regulations. The failed applications do not appear to
relate to substantive denials on the part of DOL, and we
expect approvals to be announced (even boasted of) in
the coming weeks ahead, as technical glitches are
solved, and as the new operating procedures become more
transparent.
Some of the problems with PERM that have prevented
immediate filing of applications include:
- guidance from the DOL that precluded the use of any
wage determinations made prior to March 8, 2005, and
requiring the use of a new wage guidance memorandum. The
new wage guidance imposed a complex new formula creating
four tiers for determining the prevailing wage for a
given position.
- recently announced changes to the rules regarding
PERM labor certification posting notices, which required
new addresses to be stated on posting notices to be
deemed valid, and most importantly,
- recently announced guidance (late on March 28) that
require employers alone - and not their attorneys or
agents - must register their PERM "accounts" online via
DOL's website, and
- confusion over what the DOL would accept as minimal
job requirements (or prevailing wage requirements) for a
given position, due to the erroneous publication of
O*Net Job Zone levels for certain job titles (e.g.,
Computer Systems Analysts, which were initially
described as falling within O*Net Job Zone 3, and later
corrected as falling within O*Net Job Zone 4). The O*Net
Job Zone ratings for certain positions are critical, as
such levels determine the amount of experience can be
required by an employer for a given labor certification,
without having to justify such requirements through
business necessity.
As these technical problems are hammered out, Jackson &
Hertogs expects to file successful PERM labor
certifications in the coming weeks ahead, but early
reports prove that caution has been the better part of
valor when framing PERM applications for on-line filing.
Jackson & Hertogs will provide updates on the progress
of PERM filings in the coming weeks. |
