Introduction

The Permanent Electronic Review Management (PERM) system, while touted to have greatly simplified the processing of labour certification applications, has actually resulted in countless undeserved denials due to the lack of human intervention.

Born as a re-engineered solution to a labour-intensive bureaucracy – which had backlogs of five years or more in states such as California, New York and New Jersey –PERM was introduced in March 2005 to provide almost instantaneous adjudications by means of cutting-edge technology.

For a short time, stakeholders were delighted to receive approvals quickly – sometimes within one or two days of filing. However, the buzz quickly wore off as the system's shortfalls became evident.

Problems with PERM

Although PERM Form 9089 was introduced after a lengthy vetting process that culminated with publication in the Federal Register, important data input fields were omitted. The Department of Labour computers denied cases if they lacked this data, even though there was no place to include it on the form.

Similar problems arose from pull-down menus that did not include all of the options necessary for employers to respond correctly. Important questions and spaces for qualifiers, such as licensing and combinations of skill requirements, were also left off the form. The most notorious issue has been dubbed "the magic language". The phrase 'any suitable combination of experience, education or training is acceptable' must be placed on the form if the foreign worker has already been working for the employer and has gained the necessary qualifications through alternate sets of requirements. However, there is still no space on the form for this requirement, and the Department of Labour took several years to provide guidance to the effect that employers must write this anywhere they can on the form.

Navigating the problems

Operating on a zero-tolerance policy for data input errors, the Department of Labour has always argued that when applications are denied, employers should simply correct the electronic error and resubmit the form. This reasoning seemed valid when PERM was first implemented because the turnaround time was fast and the expensive recruitment campaigns, valid for 180 days, could be used more than once. If an application was denied on a technicality, the Department of Labour reasoned that it could simply be refiled as often as needed until the system accepted the application as properly filed. However, as delays inevitably ensued, PERM processing times have slowed from instantaneous to as much as one year (or more if an audit occurs). In most cases, the 180-day post-recruitment validity period will have expired by the time the application is denied. Employers will then have to begin the PERM process again with a new, expensive recruitment campaign.

Ten years later, most of the early glitches have been fixed. However, significant problems persist due to the fact that the original form has never been updated with corrections and new high-tech anomalies constantly emerge to replace the old.

Details of these problems are not generally available, except to connoisseurs who are familiar with all of the delicate nuances found in the PERM Rule, the frequently asked questions, Department of Labour memoranda, minutes of stakeholder meetings, Board of Alien Labour Certification Appeals decisions, contradictory instructions published online and in print and debates about definitions and terms of art.

Comment

Despite the promise of efficient processing, the high-tech PERM system has confounded employers due to its complexity and inconsistencies. With many of the important rules and policies flying under the radar, employers have no one-stop shop to learn the process.

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

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