The USDOL has implemented regulations that establish an new labor certification program called "PERM." All cases filed on or after March 28, 2005, will be subject to this new system.
The new PERM program is supposed to work much faster than the old system. The goal with the new PERM system is to reach a decision in 45-60 days.
The drawbacks of PERM include the fact that there are more extensive recruitment requirements, the required offered wage will almost certainly be higher than under the previous system, and that some of the rules are still unclear.
PERM allows an employer with a previously filed labor certification to withdraw the old case and file a new case for the same position under PERM and retain the same priority date (the date the old case was filed). The filing of the new PERM case will automatically withdraw the old case.
How the Process Works
To begin a PERM filing, the employer usually should first obtain a prevailing wage determination ("PWD") from the appropriate State Workforce Agency ("SWA") (for example, the DLLR in Maryland, the VEC in Virginia, or the DES in Washington, DC).
The SWA is supposed to render its PWD within a reasonable period of time, but no time frame is guaranteed. A reasonable expectation would be 2-8 weeks, depending on the state of employment.
PERM requires more extensive recruitment than the old system. In general, the recruitment must occur between 30 and 180 days of filing the case. The recruitment steps for non-professional jobs required by PERM are as follows:
1) Posted Notice
The employer must post notice of the job opportunity for at least ten consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage.
2) Use of Other In-House Media
In addition to printed posted notice, the employer must use any and all in- house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.
3) Job Order
The employer must place a job order with the State Workforce Agency (in Maryland, the Department of Labor, Licensing and Regulation) for a period of 30 days.
4) Advertisements in newspaper or professional journals
The employer must place an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment.
5) Additional recruitment steps for professional positions (those that require a university-level degree)
The employer must select three additional recruitment steps from the alternatives listed below. Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application. The other steps are as follows:
-Recruitment at job fairs
-Advertising on Employer's Web site
-Advertising on job search Web site other than the employer's
-Advertising in trade journals or newsletters
-Private employment firms
-Use of an employee referral program with incentives
-Advertising with a campus placement office
-Advertising in local and ethnic newspapers
-Advertising on radio and television
If a qualified worker applies for the job, and wants the job after an interview, then the PERM case could not be filed at that time. The employer must wait six months and try again. (However, as always it is important to remember that the employer is never required to actually hire someone based upon a labor certification recruitment.)
As long as the employer does not file the PERM application, the old case remains "untouched" and pending at the BPC.
6) File new labor certification application: Form ETA-9089
If no qualified worker is interested in the job after the recruitment period has passed, the employer then prepares a report laying out the steps taken and the results, and files the report, along with the ETA 9089 Form, with the PERM Center. The USDOL has implemented online filing for this form.
Risks for PERM "conversions"
Although there is the potential for significant time savings, there are risks. Among these are as follows:
First, additional time and money would need to be spent on attorney charges, advertising, and recruitment expenses to re-advertise the position, which would be essentially wasted if someone wants the job.
Second, the new filing must be acceptable as a PERM "conversion" by USDOL. If something is wrong with the new filing (for example, if the new filing is for a different job than the old filing), then the old case and the new PERM case would both be closed - the employer loses both the PERM filing (it is rejected) and the priority date of the old filing.
FOR MORE INFORMATION:
Contact us at 410-719-1501.
Byrley Law Firm, LLC
10015 Old Columbia Road Suite B215
Columbia MD 21046