Introduction

There are many paths that a foreign national may pursue in order to become a US Green Card holder, including sponsorship by a family member, self-sponsorship and sponsorship by a US employer.

One way in which a foreign national may be sponsored by a US employer is through the Permanent Electronic Review Management (PERM) process. The PERM process was introduced in 2005 to streamline the foreign labour certification programme. The foreign labour certification programme requires a US employer to test the US labour market by running a series of advertisements in order to determine that there are no qualified, available and willing US workers to fill the permanent position which the US employer has available. With the departure of William Carlson, the former certifying officer of the PERM foreign labour certification programme, and the fact the PERM foreign labour certification process has not been updated or revised in more than 10 years, the Department of Labour appears poised to make changes to the PERM foreign labour certification programme in order to bring the process up to date.

The new certifying officer appointed to the Office of Foreign Labour Certification (OFLC) is William Thompson. He has many years of experience as a lawyer and within the US government.

During the American Immigration Lawyers Association's annual conference in Washington DC recently, Thompson reported that the PERM programme is undergoing an assessment period. He indicated that the assessment period will likely be completed by the end of 2015 and that any recommended changes will be implemented some time in 2016. He also indicated that some of the recommended proposed changes may need to go through the rulemaking process. Thompson reported that the Department of Labour is focusing on several areas to try to improve the PERM foreign labour certification programme. Four of these are discussed below.

Form 9089 filing fee

When the government implemented the PERM process in 2005, the Department of Labour indicated that processing times would be very fast as a result of the new electronic filing system. If harmless errors or omissions on the Form 9089 application resulted in a denial, the employer could simply correct them and refile the Form 9089 application. As a result, refiling was to be the method for making corrections to Form 9089. However, Department of Labour processing of Form 9089 applications began to take longer over time. Instead of days to adjudicate Form 9089 applications, this began to take months. This made it difficult for employers to correct harmless errors by refilling the Form 9089 applications, because the advertising that they placed in connection with their cases had become stale. (PERM advertising must be less than 180 days old at the time of submission of Form 9089.) Currently, the processing time for a prevailing wage determination is 60 days. Analyst review of a Form 9089 application is currently six months from the date on which the Form 9089 application is received by the Department of Labour (ie, the priority date) and audits of Form 9089 applications are taking 15 months from the priority date. The PERM labour certification process does not require a US sponsoring employer to pay a filing fee when submitting the Form 9089 application. However, the Department of Labour is now considering imposing a filing fee for the Form 9089 application in order to hire more personnel/officers with a view to reducing the lengthy processing times and providing better service. As a result, US employers may have to consider the additional cost of a filing fee, along with advertising costs and attorneys' fees, when considering moving forward with the PERM process for a foreign national. The Department of Labour has not indicated what amount that filing fee may be.

New forms of PERM recruitment

The Department of Labour is considering revising the recruitment methods listed in Chapter 20, Section 656 of the Code of Federal Regulations in connection with the PERM labour certification process. These revisions would bring the current PERM programme up to speed with real-world recruitment methods. Currently, the government requires a US employer sponsoring a professional in a non-university position to:

  • place two Sunday print ads in a newspaper of general circulation;
  • post notice of the job opportunity physically on the employment premises for 10 consecutive business days and in any in-house media; and
  • post notice of the job opportunity in the job bank of the state in which the intended employment is located.

In addition, the employer must engage in three additional forms of recruitment, which may include any three of the following:

  • internet job search websites;
  • a posting on the US employer's website;
  • on-campus recruitment;
  • evidence of an employer referral programme;
  • advertisements in local and ethnic newspapers; and
  • radio ads.

Correcting harmless or small errors

The Department of Labour has received a lot of feedback from the public expressing concern over the inability to correct harmless errors on the Form 9089 or cure small defects in PERM advertising. As a result, the Department of Labour has indicated that it is looking at implementing a procedure to correct minor defects without having the US employer restart the entire PERM foreign labour certification process. The Department of Labour has acknowledged the cost that employers will incur in reposting all advertising when restarting the PERM process, the loss of priority date to foreign nationals and the reviewing burden on Department of Labour staff when the PERM labour certification process must be restarted as strong reasons to implement a new procedure for correcting harmless or small errors.

Improving technology

The OFLC has acknowledged that its computer system does not function well. It is considering some temporary solutions. However, the OFLC has acknowledged that an entirely new computer system may need to be developed.

Comment

There will likely be changes to the PERM labour certification programme within the next 12 to 18 months. The level of change remains unknown; but given that the PERM foreign labour certification programme has existed for over 10 years without modification, the problems with the existing programme and the commitment expressed by the OFLC's new certifying officer, the changes may well be significant.

For further information on this topic please contact Matthew Morse at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (matt@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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