The New PERM Program: Panacea or Quagmire?

January 24, 2005

On December 27, 2004, the United States Department of Labor released its long-awaited PERM regulations. On March 28, 2005, PERM will replace the existing methods for obtaining certification from the United States Department of Labor. At the same time, USDOL is attempting to adjudicate backlogged labor certification applications as quickly as possible through the creation of two Backlog Reduction Centers. The role of state work force agencies (SWAs), such as the Colorado Department Labor, will be greatly reduced in the future. In the meantime, SWAs, including the Colorado Department of Labor, may be able to direct more resources to pending limited review and RIR applications in order to accelerate the rate of adjudication.

The previously-promulgated proposed PERM regulations included a number of restrictive provisions including elimination of "business necessity" as a justification for certain job requirements, elimination of ability to use experience gained on the job to meet job requirements and elimination of the ability to specify foreign language requirements. Fortunately, none of these proposed restrictions are found in the final regulation. A number of helpful new provisions has been added in the proposed regulations including a four-tier prevailing wage system and the elimination of the requirement that employers must use the Service Contract Act , where applicable, to determine the prevailing wage. While the PERM procedure is quite different from the current labor certification process, much of the substantive law has not been changed.

The filing of a labor certification application, under PERM, will, in many respects, be similar to the LCA process in the context of H-1B applications. Employers or their attorneys will file the new labor certification form (ETA 9089) without any supporting documentation. The new form contains a number of attestations regarding the employer's compliance with the PERM regulations. The employer must maintain sufficient documentation in support of the attestations for a period of five years. The form can be filed electronically or by mail. Electronically-filed applications do not need to be signed by the employer and employee until after they are approved.

The new form ETA 9089 will be filed with one of two PERM Processing Centers depending upon the location of the job. The application will be reviewed by Department of Labor adjudicators and presumably the vast majority of applications will be approved without any further processing. Some applications will be selected for a Department of Labor audit based upon certain prescribed but unpublished criteria, and some cases will be selected, randomly, for an audit. If an application is selected for auditing, the employer will be required to submit the documentation that supports the attestations on the form. After reviewing the submitted documentation, the Certifying Officer can approve the application, issue a "notice of findings" or some other request for additional information, or can require the employer to engage in "supervised recruiting." Under certain circumstances, if the Department of Labor determines that there was fraud or misrepresentation in connection with an application, it can require the offending employer to engage in the supervised recruitment for all of its applications for a period of up to two years.

The PERM regulations allow the Department of Labor, under certain circumstances, to revoke previously-approved labor certification applications, and employers are required to maintain the supporting documentation for a period of five years.

If a PERM application is denied, an employer may request reconsideration and/or file an appeal before the Board of Alien Labor Certification Appeals.