The New PERM Program: Unanswered Questions Continued

January 24, 2005

Under the PERM regulations, employers will be required to pay 100% of the prevailing wage. Similar to the recent H-1B legislation, government surveys must include four separate levels rather than only two levels (entry level and experienced). The regulations contain a formula for creating additional levels if the survey only contains two levels. PERM liberalizes the use of alternate surveys and broadens the acceptable geographic scope of prevailing wage surveys.

Unfortunately, the PERM regulations did not cure the problem whereby the OES wage survey includes bonuses, commissions, and cost-of-living allowances while prohibiting an employer for including these items in calculating the employee's compensation unless they are guaranteed.

The regulations confirm the fact that State Workforce Agencies (SWAs) will continue to be responsible for providing prevailing wage information and a prevailing wage must be obtained prior to filing the PERM labor certification application.

Prior to the promulgation of the PERM regulations, SWAs and the U.S. Department of Labor used SVP levels in determining whether the minimum requirements contained in the labor certification were reasonable. SVP levels were published the Dictionary of Occupational Titles.

The PERM regulations require the use of O*NET job zones instead of SVP levels. The O*NET job zones are less clear and contain some confusing and illogical classifications of jobs, particularly Job Zone 4. It is possible that substantially less experience and/or education may be required by employers under O*NET job zones but clarification is still needed.

The use of job zones instead of the SVP has been a topic of great concern among immigration attorneys. We are hoping that the Department of Labor will clarify the issues raised about job zones prior to the March 28 launch of the PERM program.

One of the areas of greatest concern is how long it will take the U.S. Department of Labor to adjudicate backlogged labor certification applications. The Backlog Reduction Centers started receiving old labor certification cases in the late fall of 2004, and it is still too early to tell how long it will take the Centers to adjudicate these applications. The Colorado Department of Labor has already transferred all applications filed before January 1, 2003 to the Backlog Reduction Centers and by the end of March of this year will be transferring cases filed in 2003 and 2004. The Colorado Department of Labor is currently adjudicating RIR applications filed in mid-February of 2003, and the head of that agency has indicated that they will be devoting more resources to adjudicating RIR cases before the March transfer date. Therefore, there is some hope that the pace of adjudication of pending RIR cases will accelerate prior to the transfer of cases in March. However, it is still impossible to predict how long it will take pending RIR cases to be adjudicated by the Backlog Reduction Centers or the Colorado Department of Labor.

It is equally impossible to predict how long it will take the Department of Labor to adjudicate newly-filed PERM applications given the possible deluge of newly-filed applications and the normal "bugs" that are attendant to any new program of this magnitude. Our office is closely following these developments in order to better advise our clients as to the best strategies for handling their labor certification applications.